It’s not true that Trump-appointed judges are beholden to Trump, certainly. It turns out they were presented by the most right-wing president in recent history, specifically because he believed they reflected some part of his politics. Once on the court, they were joined by two other justices – Samuel A. Alito Jr. and Clarence Thomas – whose right-wing bona fides were already well established. Add in Chief Justice John G. Roberts Jr., a moderate only in comparison to his colleagues, and the court has tilted 2 to 1 to the right and to Trump.
Trump’s assessment of the court’s usefulness for his ambitions was often open. His nomination of Amy Coney Barrett (the judge who arrived just before the 2020 election) came as he argued that a full bench was needed because of “this scam that the Democrats are pulling” – referring to the dishonest idea he was promoting that the election would somehow be stolen. That question, he said, “will be submitted to the Supreme Court of the United States,” and an eight-judge bench risked a tied decision.
Then, as he feared, he lost the election. He and his allies worked to keep him in office despite his defeat, trying to stop the counting of votes in states won by Joe Biden and then blocking the certification of the election results. Ultimately, his effort centered on the invalid electoral lists submitted by the states he lost and the idea that if the dominoes fell the right way, the Supreme Court would help ensure he won the electoral vote.
On Tuesday, the Wisconsin attorney general’s office filed criminal charges against three Trump allies for their efforts to undermine that state’s legitimate voters. The criminal complaint alleges that Mike Roman, Kenneth Chesebro and James Troupis engaged in a criminal conspiracy to that end.
Roman and Chesebro had previously been indicted on similar charges. Four states have indicted Trump or people close to him over efforts to overturn the 2020 election. Special Counsel Jack Smith also obtained an indictment against Trump in DC federal court. Trump, Chesebro and others are also identified or identifiable as unindicted co-conspirators in several cases.
The alleged plan in Wisconsin is detailed in the complaint. It was interconnected and at points dependent on the Federal Supreme Court.
On January 6, 2021, before the voter count was interrupted by the attack on the US Capitol, there was an alleged attempt to ensure that Vice President Mike Pence had the invalid list of electors to consider. This would have been discussed between the three men accused in the complaint. Troupis offered that the next step would be to “talk about the SCOTUS strategy going forward.”
At the center of this plan was John Eastman, who wrote a memo (mentioned in the Wisconsin complaint) outlining the strategy. It culminated in the recognition that Democrats would try to get the Supreme Court to intervene, while acknowledging that the outcome would likely not be positive.
He and Chesebro also pushed to achieve something on the court and any sympathetic judges – four of them, as Eastman would have suggested to Chesebro. Eastman also reportedly suggested that the threat of chaos accompanying the counting of electoral votes could spur the court to act more quickly.
Who these four judges might have been was not identified in the news or uncovered by the House select committee investigating the Capitol riot. (Eastman repeatedly invoked his Fifth Amendment rights when subpoenaed by the commission.) But we can probably guess at least one: Thomas, who was identified in contemporaneous emails as friendly.
After Trump was convicted last week of 34 criminal charges at his Manhattan trial, Eastman again addressed the idea that the Supreme Court could rescue Trump during a conversation with a right-wing podcaster. Trump’s team, he said, needed to file a court order to block sentencing based on that verdict.
“This needs to be done, given these extraordinary circumstances,” he warned, “before people start looking for solutions on their own” – an apparent prediction of violence.
“This Supreme Court is expected to understand” the case’s alleged flaws, Eastman later said, “and address it. And understand the risk of no taking this.
The idea that the court could undo Trump’s conviction is something Trump himself has recently embraced. In a post on Truth Social, the social media platform he owns, Trump wrote that “the Supreme Court of the United States MUST DECIDE” how this legal fight ends. His predicate for this term was like Eastman’s, a mix of false and exaggerated claims about perceived injustices and prejudices.
Trump was not alone in this call. House Speaker Mike Johnson (R-La.) suggested in a recent Fox News interview that the court should intervene.
“I believe the Supreme Court should intervene,” he said, adding that he “knows[s] many of them in person.” He clarified in a subsequent interview on Sunday that he had not had specific conversations about the case with any Supreme Court justice.
This impulse, however, is the main point. It is fair to consider the Supreme Court to be the final arbiter in most legal matters, given that that is the court’s role. But there is an important distinction between the court’s role as a check on legislative and executive powers and seeing it as a way to circumvent other forms of government power. There is also a distinction between a court that assesses questions of law that have an effect on the power and a court that seeks to have an effect on the power by allowing it to determine how it assesses the issues.
Trump’s approach to the presidency and the federal government is that restrictions on elections, regulations, or checks and balances are tedious inconveniences. The Supreme Court, an unelected body with little accountability and a conservative majority that he helped shape, is a way around all this, as his and his allies’ approach to the court makes clear.
The Federal Supreme Court is at the end of its term. Among the unresolved questions for which we expect a decision soon: whether Trump, as president, had broad immunity for his actions. This decision could, in the blink of an eye, undermine the effort to hold Trump accountable for his efforts to maintain power after losing in 2020.
