The Volokh Conspiracy
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The Court Splits 5-4 on Docket Number 666
Chief Justice Roberts and Justice Barrett rule against Trump (again).
Trump's emergency application to stay his sentencing has the docket number 24A666. Sometimes, the truth is stranger than fiction.
The Court denied the application by a 5-4 vote. Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the application. Based on the math, we know that Chief Justice Roberts and Justice Barrett voted to deny the application. In the past, I've described the current composition as a 3-3-3 Court on the shadow docket. But for the emergency docket, I think we now have a 5-4 court. I think Justice Kavanaugh has shifted a bit. This same-split arose in the razor wire case last year. Justice Barrett is opposed to granting emergency relief (unless the case comes from the Fifth Circuit), while Justice Kavanaugh recognizes the importance of emergency relief. Going forward, I think Roberts and Barrett will consistently vote against Trump on the emergency docket, even if they might rule for Trump on the merits docket.
To the majority's credit, there is a brief explanation why the stay was denied. Two reason are offered.
Application (24A666) for stay presented to Justice Sotomayor and by her referred to the Court is denied for, inter alia, the following reasons. First, the alleged evidentiary violations at President-Elect Trump's state-court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the President-Elect's responsibilities is relatively insubstantial in light of the trial court's stated intent to impose a sentence of "unconditional discharge" after a brief virtual hearing. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.
I think Barrett, the former evidence and federal courts professor, wrote the first point. It is short, to the point, and says all the things that Barrett thinks. Indeed, in Trump v. United States, Justice Barrett disagreed with the majority's ruling that the court could not admit "immune" actions as evidence in the trial. She would have allowed the admission of that evidence. Barrett seemed to think the trial court could weight the admissibility issues. Also, Barrett opposed the doctrine of immunity (which allows for interlocutory review), and instead said that immunity could be raised as a defense, and then be "addressed in the ordinary course on appeal." This sentence is ACB in a nutshell.
The second point is John Roberts at his core. He asks, what are the burdens? Trump has to sit through a "brief virtual hearing." He doesn't even have to pay attention! Judge Merchan will impose a sentence without any actual punishment. And what is the effect of those burdens? A "relatively insubstantial" impact on "the President-Elect's responsibilities." What are those responsibilities? And "relative" to what? Has there ever any experience in the history of the republic that is even remotely comparable? Roberts does not answer any of these questions. On the other side of the ledger, what are the benefits of allowing the sentencing to go forward? Roberts does not say. Nothing about the importance of finality, or letting justice be done, or anything like that. And that's the tell. Roberts sees no actual benefit to having Trump sentenced to no time. There is not a real balancing test because Roberts doesn't really balance the burdens against anything. He only says the burdens are not that bad, so suck it up. This is just make-weight to deny the application.
I know the Court felt compared to rush out some stuff about why the application was being denied. Critics demand an explanation on the "shadow" docket. But this explanation was quite unsatisfactory. I would have preferred a one sentence dismissal rather than trying to parse what are the "President-Elect's responsibilities" under the Constitution.
