WASHINGTON (CN) — The Supreme Court has been asked to do something it rarely does: move fast.
Special Counsel Jack Smith has asked the justices to resolve whether former President Donald Trump should be immune from criminal charges before the start of his scheduled March trial.
The high court can spend months pondering whether to hear a big case like the one Smith has brought them. Should the justices agree to hear the issue, weeks of briefing ensue, not to mention the months spent on writing a ruling.
Other high-profile cases have sat on the high court docket for over a year, such as the affirmative action cases decided last term, which were filed before the court in 2021. The justices heard oral arguments in October 2022 and didn’t decide the case until late June 2023.
Smith wants the Supreme Court to consolidate that timeline into around two months. While this schedule would be highly unusual for the justices, it’s not unheard of.
Chief among the examples of how quickly the high court can work when under pressure is a case from another former president embroiled in scandal, Richard Nixon.
Similar to Trump, the Watergate cases were scheduled to go to trial on Sep. 9, 1974. A special prosecutor wanted Nixon to hand over audio recordings from the Oval Office, but the former president claimed he was immune and refused to do so. To avoid delaying the trial, the special prosecutor asked the Supreme Court for quick intervention.
The special prosecutor appealed to the court on May 24, 1974, and by the next week, the justices had agreed to hear the case. The court heard oral argument on July 8, 1974, and issued a ruling a little over two weeks later.
As Smith suggests, U.S. v. Nixon shows the court can move fast when it wants to. The question here is if it does.
“The court has the power and the ability to move very, very quickly and to do so at this very early stage of litigation, the question has always just been whether the justices want to,” said Steve Vladeck, the Charles Alan Wright Chair in federal courts at the University of Texas school of law.
While Nixon might be the most salient example, it is not the only time the court has moved quickly. Before the court’s landmark ruling overturning the right to an abortion, the justices weighed in on a Texas law seeming to conflict with Roe v. Wade. The petition was filed Sept. 23, 2021, granted on Oct. 22, and the court heard arguments on Nov. 1. By Dec. 10, the court had issued a ruling.
Smith asked the justices to review Trump’s presidential immunity claim against criminal charges linked to efforts to overturn the 2020 election on Monday. Only a few hours later, the justice agreed to an expedited review of whether to hear the case and ordered Trump to respond by Dec. 20.
Following the court’s prior examples, the justices could agree to hear the issue by the end of the month, hear arguments in January and issue a ruling in February.
Part of Smith’s expedited review request asks the justices to hear the petition prior to the appeals court. Generally, that's something the justices don't do — except in the cases where they do. Vladeck compiled a list of 49 times the court has agreed to take up a case before an appeals court has had the chance.
Working in Smith’s favor, most of those cases have to do with presidential power.
“The court has shown much more willingness to move very quickly, even in cases that might not have met those historical criteria,” Vladeck said.
“You have a major and unsettled question of constitutional law — a question that I think the court would want to decide one way or the other eventually — and you have to deal with a bit of a ticking clock, in the sense that whether President Trump is immune from the prosecution or not probably is something we ought to figure out before the sort of the clock runs out on a potential prosecution.”
Even in the best scenario for Smith’s petition at the court, however, there could be another Supreme Court wrench blocking up the trial start date. On Wednesday, the court agreed to hear an appeal from a Capitol rioter fighting his obstruction charges from the insurrection.
Trump faces the same charge. It’s not clear if the obstruction case — which will likely be decided sometime in late June — will delay Trump’s trial but it’s a possibility.
On Wednesday night, U.S. District Judge Tanya Chutkan, who is overseeing Trump’s Washington trial, paused all proceedings while the appeals process plays out on the former president’s immunity defense.
Follow @KelseyReichmann
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