\n\n“In recent years, the Roberts Court has shown greater and greater impatience with criminal defendants\u2019 efforts to forestall punishment \u2014 even if the outcome would be cruel, needlessly painful or simply unjustified. The effect of this new hostility to delay is most sharply felt in the death penalty context. But a general hostility to foot-dragging in criminal cases is a through line in the court\u2019s docket.<\/p>\n\n\n\n
Justice Neil Gorsuch set the tone for this approach in 2019, when he complained that legal challenges<\/a> to the death penalty were often used to stall or even derail execution. Courts, said Gorsuch, should \u201cpolice carefully against attempts\u201d to use constitutional challenges as tools to interpose unjustified delay.\u201d In particular, he warned, \u201clast-minute stays should be the extreme exception, not the norm.\u201d<\/p>\n\n\n\n The court has since followed Gorsuch\u2019s lead with an unsavory relish. Before 2020 and the death of Justice Ruth Bader Ginsburg, it was common for the Supreme Court to grant stays to hear legal questions that arose at the last stage of a capital case. Since then, it has only granted two such stays<\/a>. In the same period, it has also vacated nine stays on death sentences imposed by lower courts.<\/p>\n\n\n\n The result has been predictable: Many of the convictions the court has let stand are plausibly described as \u201criddled with errors.\u201d<\/a> And in January, the court declined to hear a challenge<\/a> to Alabama\u2019s novel use of nitrogen gas to execute Kenneth Smith. Witnesses described Smith\u2019s resulting death as horrific<\/a> \u2014 extended and torturous \u2014 and not at all painless as the state promised.<\/p>\n\n\n\n The same is true of federal prosecutions. In the last half of 2020, the court stepped aside as the federal government sprinted to execute 13 people<\/a> \u2014 as many as had been killed in the previous six decades. Justice Sonia Sotomayor noted that the court \u201crepeatedly sidestepped its usual deliberative processes\u201d to enable an \u201cexpedited spree of executions.\u201d In its haste to see punishment done, the court waved away its usual rules.<\/p>\n\n\n\n Outside the capital punishment cases, the Supreme Court has added more and more constraints upon prisoners\u2019 ability to challenge constitutional errors. Gorsuch and Justice Clarence Thomas in particular have urged<\/a> that the longstanding right to challenge state court convictions in federal court be effectively gutted. The effect of their proposal would be to streamline even further the criminal justice process \u2014 shutting down almost all efforts to raise objections before they had even started.<\/p>\n\n\n\n All this makes the Supreme Court\u2019s decision to hear Trump\u2019s appeal for absolute immunity from all criminal charges even more unusual, and troubling.<\/p>\n\n\n\n Start with the weakness of Trump\u2019s argument. There is absolutely no constitutional text, no precedent and no authority in the original debates over the Constitution\u2019s ratification to support the idea for a former president\u2019s absolute immunity. The argument advanced by Trump\u2019s counsel is patently absurd. The idea that senators could impeach a president who threatened them with deadly violence and so no criminal justice process is needed, is facetious. The District of Columbia Court of Appeals rightly ridiculed it \u2014 and issued a comprehensive, tightly reasoned and unanimous opinion that presented no good cause for further review.<\/p>\n\n\n\n Trump is within his right to appeal the decision, but there\u2019s no good reason for the Supreme Court to take it up and review it as a matter of law \u2014 especially given how thorough the D.C. Circuit was.<\/p>\n\n\n\n In fact, the court\u2019s erstwhile concern with \u201cunjustified delay\u201d in criminal cases would seem to cut hard against hearing the case. It is, after all, a matter of common knowledge that the former president\u2019s legal strategy is to run out the clock and thus prevent a trial prior to the election. Here then is a case where justice delayed may well be justice derailed.<\/p>\n\n\n\n Indeed, the grounds for the court rejecting Trump\u2019s request to take up the immunity question appear much stronger than in Kenneth Smith\u2019s challenge to the use of nitrogen gas. If Smith had been successful, Alabama could have found another, permissible way to kill him. If Trump\u2019s trial is delayed enough, it may never happen. If Trump is back in the White House, he can easily quash the Justice Department\u2019s case.<\/p>\n\n\n\n The Supreme Court\u2019s attention, moreover, is a precision good. In the court\u2019s 2022-23 term, the court issued just 58 decisions<\/a>. Given that this scarce commodity is so infrequently used to prevent the miscarriage of criminal justice, the question must be asked: Why now? And why for this defendant?<\/p>\n\n\n\n