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Monday, March 11, 2024

The Secrecy of Certiorari, Trump, and Justice Thomas

My new essay in The Hill explains how the Supreme Court’s “lifeline” to Donald Trump may have been improperly decided by Justice Thomas’s conflicted vote. Here is the gist:

Which Supreme Court justices threw Trump the immunity lifeline?

The delay, with special prosecutor Jack Smith’s case suspended in the meantime, means that Trump may escape trial before the November election.

Justice Clarence Thomas, despite a glaring conflict of interest, might even have cast the deciding vote. 

The Supreme Court’s acceptance of appeals requires the votes of only four justices, but the actual total is rarely disclosed, nor are the names of the justices who voted for or against the review. 

The result is a shrouded process in which the public never learns which justices are responsible for placing cases on the Supreme Court’s docket. The secrecy of certiorari votes has gone on for so long that it probably seems normal, but it is otherwise an anomaly in a democratic society. 

It is, thus, conceivable that Thomas delivered the crucial final vote to grant review and delay the trial. 

Or maybe not. It is also possible — perhaps even likely — that five or more justices voted to take up the issue of presidential immunity, making any single vote irrelevant. Unfortunately, the Supreme Court’s insistence on secrecy has made it impossible to know whether Thomas has improperly exerted a determinative influence on the court’s agenda, in one of the most significant certiorari decisions in history. 

You can read the entire essay in The Hill.

Posted by Steve Lubet on March 11, 2024 at 11:58 AM | Permalink


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