Of course, the justices appointed under the Trump administration are not beholden to Trump; they were appointed by the most right-wing president in modern history who believed that their nominations reflected his own political stance to some extent. When they were sworn in, they joined two other justices who were already established on the right, Justices Samuel A. Alito Jr. and Clarence Thomas. When you add in Justice John G. Roberts Jr., who is only a moderate compared to his colleagues, the court leans 2-to-1 toward the right and toward Trump.
Trump has often openly assessed the Supreme Court’s usefulness to his ambitions. His nomination of Judge Amy Coney Barrett (who was seated just before the 2020 election) came as he argued he needed a full court because of “this fraud that the Democrats are perpetrating,” a reference to the disingenuous idea Trump has promoted that the election was somehow stolen. He said the issue “will be brought to the United States Supreme Court,” risking a tie-breaking decision on the eight-judge court.
And just as he feared, he lost the election. He and his allies tried to keep him in office despite his loss, trying to block vote counting in states Joe Biden had won and to prevent the certification of the election results. Ultimately, their efforts focused on invalid electoral rolls submitted by states he had lost and the idea that if the dominoes fell the right way, the Supreme Court would help him win the electoral votes.
The Wisconsin Attorney General’s office on Tuesday filed criminal charges against three of Trump’s associates for allegedly trying to undermine the state’s legitimate electoral votes. The complaint alleges that Mike Roman, Kenneth Chesbro and James Troupis participated in a criminal conspiracy.
Roman and Chesebro have previously been indicted on similar charges. Four states have indicted Trump or people close to Trump on charges of trying to overturn the results of the 2020 election. Special counsel Jack Smith also obtained an indictment against Trump in federal court in Washington. Trump, Chesebro and others have been identified or are identifiable as unindicted co-conspirators in several cases.
The alleged Wisconsin scheme is detailed in the complaint and is intertwined with and subject to Supreme Court decisions.
There were alleged attempts to allow Vice President Mike Pence to review an invalid slate of electors, which were allegedly discussed between the three men charged in the indictment before the storming of the U.S. Capitol on January 6, 2021, halting the electoral count. Troupis said the next step would be to “discuss a strategy for the Supreme Court going forward.”
The central figure in this plan was John Eastman, who wrote a memo (described in the Wisconsin complaint) outlining the strategy, concluding with the recognition that Democrats would try to get the Supreme Court to intervene, though Eastman acknowledged that the outcome would not be positive.
He and Chesebro were also trying to get something before the courts. Justice Eastman reportedly suggested to Justice Chesebro that there were four justices who were sympathetic. Justice Eastman also reportedly suggested that fears of chaos surrounding the counting of electoral votes might prompt the Supreme Court to move more quickly.
The identities of those four justices have not been identified in news reports or by the House Select Committee investigating the Capitol attack. (Justice Eastman repeatedly asserted his Fifth Amendment rights when subpoenaed by the committee.) But we can guess at at least one: Justice Thomas, who was portrayed as sympathetic in contemporaneous emails.
Speaking with a right-wing podcaster after Trump was convicted of 34 felony counts in a Manhattan trial last week, Eastman again raised the idea that the Supreme Court might grant bail to Trump. He said the Trump campaign would need to file a writ with the Supreme Court to block the sentencing based on that conviction.
“Given these extraordinary circumstances, this needs to be done before people start seeking relief themselves,” he warned, an apparent prediction of violence.
“I hope the Supreme Court will understand and address the flaws in this case,” Eastman said later. “And do not have We’ll take that up.”
The idea that the Supreme Court could vacate Trump’s conviction is one that Trump himself has recently embraced, writing in a post on his social media platform, Truth Social, that “the Supreme Court of the United States must decide” how the legal battle will be resolved. The basis for the order was the same as Eastman’s: a laundry list of false and exaggerated claims of unfairness and bias.
Trump is not alone in this call: House Speaker Mike Johnson (R-Louisiana) suggested in a recent Fox News interview that the courts should step in.
“I believe the Supreme Court should step in,” he said.[s] A lot of them feel that way privately,” he said. Later in an interview on Sunday, he clarified that he had not had any specific discussions with the Supreme Court justices about the case.
But that impulse is precisely the point. It is reasonable to think of the Supreme Court as the final arbiter of most legal questions, for that is its role. But there is an important difference between the Supreme Court’s role as a check on the legislative and executive branches and its role as a way around other forms of government power. There is also a difference between a court that evaluates legal questions that affect power and a court that seeks to affect power by deferring to the power how to evaluate the questions.
Trump’s approach to the federal government is that the constraints of elections, norms, and checks and balances are onerous and inconvenient — and the Supreme Court, which Trump helped shape — is unelected, largely unaccountable, and heavily conservative, a way to get around all of that, as is evident in Trump and his allies’ approach to the Supreme Court.
The Supreme Court’s term is nearing its end, and one of the outstanding issues it expects to rule on soon is whether President Trump enjoyed broad immunity for his actions. Such a decision could instantly halt efforts to hold him accountable for his efforts to stay in power after losing the 2020 election.
