The Supreme Court Primary

Given that the Republicans have lost the popular vote in five of the last six presidential elections, it makes sense that they would enter Donald Trump,  their leading candidate in 2024, in the Supreme Court primary, where only nine people can vote and a majority of them are in the bag for the former president. As they say, making it sound like Dixville Notch, New Hampshire: “As the Supreme Court goes, so goes the nation.”

Legally speaking, the Supreme Court could rule on presidential immunity, once a president is out of office, in an afternoon, as no conceivable reading (Originalist or otherwise) of the Constitution construes an interpretation that presidents in power are free to break any law that they choose or that, once having left the job, they enjoy blanket immunity from criminal charges.

Instead, the Supreme Court (best understood as the Trump Organization’s house law firm) ruled that it would hear appeal arguments on April 22, and perhaps (although there is no guarantee) rule by the time the court adjourns in June.

Meaning: even if the Court eventually rules against Trump’s claim of post-presidential immunity, it is likely that simply by accepting the case the Court will have foreclosed the possibility that Trump will stand trial before the November 2024 election on the charges brought against him over the January 6, 2021 insurrection.


In this way, the Trump majority on the Court—all those justices flying free on private jets to Komodo Island, aligning elections with sacks of corporate cash, standing tall with active school shooters, and banning abortions even in cases of rape and incest—can hope that their man in Mar-a-Lago wins the 2024 election and will be in a position to dismiss the charges brought against him.

Even if Trump loses his immunity appeal in May or June 2024, the Justice Department (Jack Smith presiding in this case) would still need about 90 days to prepare its case for trial, and then it would run up against established judicial precedent that candidates for high elective office should not be in the dock in the weeks before an election.

In agreeing to hear the appeal—no matter how far-fetched—the Court has understood that it was intervening on the side of the Keep-Trump-Out-of-Jail campaign. In that sense, the members of the Supreme Court are best understood as Trump bail bondsmen.


In case you feel let down by a Supreme Court that is little better than some Steve Bannon, Roger Stone, MAGA PAC slush fund set up to pay Trump’s legal bills or rape-related judgments, keep in mind that it was “judicial Power” and the rule of law, not simply the Supreme Court, that was created as a co-equal branch of government.

The drafters of the Constitution gave so little thought to the Supreme Court’s influence in the future of the nation’s public life that it failed to set terms for the justices or even to establish the number of justices who were to serve.

The article reads: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

It continues, almost as if in an aside, that “Judges shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”


From that clause, we now have the modern monster of yet another non-elected, gerrymandered branch of government that somehow has no elections, lifetime tenure, and fewer conflict-of-interest regulations than your average Little League team.

No wonder the Court has come to regard itself as a a self-sustaining camarilla, way above the laws that it mandates for its captive nation. (See Dobbs v. Jackson.)

From the Supreme Court have come some of the worst political decisions in the country’s history. I shall mention three that the Court (“Equal Justice Under Law” hangs over the front door) has bestowed on its banana republic:

+ The first is the decision in Dred Scott v. Sandford (1857) that extended slavery to the territories (unincorporated states in the West) and enshrined bounty hunting on the books of U.S. civil codes;

+ The second is Plessy v. Ferguson (1896), which legalized segregation across the United States, provided that “separate” facilities were “equal,” a fiction alive only in the minds of the racist justices who voted 7-1 in favor of American apartheid.

+ In third place you can choose between Buck v. Bell (1927), which authorized state-sponsored forced sterilization “of the unfit”, or Korematsu v. United States (1944), which upheld the internment of Japanese-American citizens in concentration camps during World War II.

But don’t overlook Bush v. Gore (2000), in which (by denying a recount of confusing votes in Florida) a Republican majority on the Court anointed a Republican president who had lost the popular vote nationwide.

In other words, the Supreme Court speaks in the voice of its paymasters, not the text of the U.S. Constitution. It’s the dummy, not the ventriloquist.


For Trump to prevail in the Supreme Court primary, all he needs is a vote from five or six justices, which ought to be a no-brainer given that he nominated three of them, no doubt with the proviso that they would never vote against his personal interests. The other three might well be Trump condominiums.

Keep in mind that cultist Justice Amy Coney Barrett brought six of her seven children to the White House on October 5, 2020—during the worst of the Covid pandemic—just so that Trump could stage an election campaign photo-op with the Barrett Bunch in the Oval Office.

Nor does it trouble the sleep of Chief Justice Roberts that one of his justices, Clarence Thomas, has accepted gifts valued at several hundred thousand dollars from MAGA Republicans that have interests in front of the Court. Or that Thomas’s wife, Ginni, was among the co-conspirators who lobbied the president to overturn the legal results of the 2020 election (the same matter that is now in front of her husband and the Court).

Nor is it disqualifying on the compromised Roberts court that one of Trump’s lawyers, Alina Gabba, spoke menacingly in public about Budweiser’s favorite justice, Judge Brett Kavanaugh, saying that he owes Trump a solid in any cases that might come before his Court kegerator. She said:

You know, people like Kavanaugh, who the president fought for, who the president went through hell to get into place, hell step up. Those people will step up. Not because theyre pro-Trump but because theyre pro-law, because theyre pro-fairness. And the law on this is very clear.

It sounds like the exchange in The Godfather, in which Don Phillip Tattaglia says about Don Corleone: “Yes…he is too modest. He had all the judges and politicians in his pocket, and refused to share them.”

Matthew Stevenson is the author of many books, including Reading the Rails, Appalachia Spring, andThe Revolution as a Dinner Party, about China throughout its turbulent twentieth century. His most recent books are Biking with Bismarck and Our Man in Iran. Out now: Donald Trump’s Circus Maximus and Joe Biden’s Excellent Adventure, about the 2016 and 2020 elections.