Donald Trump will be sentenced today by Acting Justice of the New York State Supreme Court, Juan Merchan, upon his conviction for 34 felonies. Absent any monumental change in circumstances, his sentence will consist of a stern look and admonition to never do it again. Whether Trump can control himself from using his opportunity to address the court to convince Justice Merchan that an unconditional discharge is inadequate remains to be seen, but assuming so, the entire matter will be over quickly with little muss or fuss, or consequences beyond the obligatory post-sentence appeal to the Appellate Division of the Supreme Court, First Department.
So why did four justices of the Supreme Court of the United States vote to stay this proceeding?
The Supreme Court’s rejection on Thursday of President-elect Donald J. Trump’s request to be spared from being sentenced for 34 felonies was just a few lines long, and it made modest and practical points.
The Supreme Court’s order was brief and clear.
The application 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.
Josh Blackman explains at Volokh Conspiracy, Chief Justice Roberts and Justice Barrett being in the majority makes sense in light of limits of their prior views on presidential immunity. although the position as to C.J. Roberts is hardly as clear as Justice Barrett’s evidentiary misgivings.
But what is striking is the final sentence of the order.
Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.
No explanation is offered. What legitimate rationale could there be for four justices to grant a stay in this case? The question cannot be that Trump will not get the opportunity to appeal the conviction, to challenge every aspect of the conviction he believes was error, as he still has an appeal as of right and, should he lose, discretionary appeals thereafter. But a stay?
The best reason I can come up with is that under the majority opinion in United States v. Trump, the immunity decision, the Court held that presumptively immune conduct cannot be used as evidence against a former president, and that the determination of whether the presumption applies to the former president’s conduct should be made, and subject to interlocutory appeal, in advance of its admission into evidence. That didn’t happen here, but then the immunity decision wasn’t issued until after the trial and verdict, make it a temporal impossibility.
Is that why the four justices would have granted a stay? For the two very pragmatic reasons stated in the denial of the stay, this would seem a ridiculous and impractical extension of the immunity decision under the unique circumstances of this case. On the other hand, the four justices’ decision that a stay should issue feeds into the belief that they are simply being partisan and that the Court has become another political institution pandering to the desires of Donald Trump.
Either way, that four justices dissented from the ruling of the majority to deny the stay without proffering a damn good reason is a poor reflection on the integrity of the Court.