There is good reason for cynicism about the prospects of holding Donald Trump accountable for his misdeeds.
He has more than enough money to pursue his legal strategy of delay, delay, delay in the multiple criminal cases against him. He has a federal judiciary that moves ponderously in the wake of a U.S. Department of Justice investigation that moved alarmingly slowly before indicting him. He has a federal judge in Florida, Aileen Cannon, his own appointee, who might as well wear a red cap to work as she bogs down his stolen documents case in accord with his wishes. He has the potential to win the presidency next year, after which he promises to free himself of legal encumbrances while pursuing vendettas, perhaps the violent sort, against Americans who threaten, or compete for his power.
That’s a lot of aces for a criminal defendant facing 91 counts and a mountain of highly credible evidence. But there is one key component of beating the raps that I suspect Trump lacks: a willing U.S. Supreme Court.
The Supreme Court is the natural end point of the likely conviction-and-appeal process that Trump’s cases will follow. The three Supreme Court justices appointed by Democrats have no interest in bending the law for the greater glory of MAGA. But even a majority of the court’s six conservatives are likely disinclined to be Trump’s accomplices.
I make no predictions about Justices Clarence Thomas and Samuel Alito, whose jurisprudence is often akin to a whiny segment on Fox & Friends, if Fox & Friends were filmed on a sofa aboard a yacht. But the four remaining Republicans simply don’t have much reason to tank the system in Trump’s behalf. After all, they’re already tanking the system to advance causes they value much more than the former president, including their own collective kingship.
In its current polarized state, the U.S. is governed by unelected right-wing activists working in concert with six unelected jurists on the high court. Here’s how a bill becomes law in 2023: A right-wing activist, or a MAGA state office holder, files a lawsuit — often in Texas, where judge-shopping has become as common among conservatives as a trip to Hobby Lobby. After the ruling is handed down, the loser appeals to the far-right 5th Circuit Court of Appeals. From there, it’s just a skip and a jump to the Supreme Court in Washington, where six judges craft the conservative legislation that will bind the entire nation. Does the federal government, under the direction of the Democratic president, really have the power to enforce its own rules? The conservative justices will decide.
You may have learned in school that Congress has the power to tax and spend. Yet in a case argued before the Supreme Court this week, it’s the justices who will decide whether Congress is precluded from taxing wealth. The case followed a non-Texas route, with the wealthy plaintiffs losing at both federal district court in Washington State and at the court of appeals for the 9th Circuit before appealing to the Supreme Court, where the conservative justices will now make the law while Congress watches the sausage-making from across the street.
All that power vested in a handful of Republican judges is a pretty dodgy matter. But it’s also pretty heady. One of the traits that marks people who grind their way to prestigious and powerful positions is an abiding appetite for prestige and power. (It’s hardly a partisan quality. Liberal Justice Ruth Bader Ginsburg clung to her office until death, jeopardizing her entire life’s work rather than retiring when she could have been replaced by a Democratic president and Senate.)
The fastest way for Chief Justice John Roberts and company to become irrelevant is for their quasi-kingship to be supplanted by a MAGA dictatorship. Unlike, say, House Speaker Mike Johnson, a White Christian nationalist who would gain real power as Trump’s handyman in Congress, there isn’t much in it for the justices. After all, what use would Trump, unleashed in a second term, have for a Supreme Court? No longer constrained by rule-of-law RINOs, the unfettered MAGA king would be the ultimate decider. The conservative court would become a MAGA appendix. The court would only be noticed if it caused a problem — and the problem, or problems, could be removed (with the help of allies such as Johnson).
It seems likely that only one of Trump’s criminal trials — his indictment on efforts to overthrow the government, leading to the Jan. 6 attack on the Capitol — will produce a verdict in 2024. Trump will no doubt appeal a conviction. By upholding the rule of law in the case, the justices can have their constitutional cake and eat it. They can be public champions of the law while entrenching their own sketchy power. This is likely an especially appealing combo for the three justices appointed by Trump. Forever tainted by association with a lawless demagogue, they would have another opportunity to scrub the stain, as they did when they rejected Trump’s false claims about the 2020 election.
Ultimately, Trump could be done in by the conservative justices hewing to the rule of law. Or he could be undone by their ambition for power, which competes with his. It’s hard to imagine why they would choose to bury both the Constitution, and their impressive new powers, in the MAGA dumpster.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners. Francis Wilkinson is a Bloomberg Opinion columnist covering U.S. politics and policy. Previously, he was executive editor for the Week and a writer for Rolling Stone.