Dahlia Lithwick and Mark Joseph Stern:

When called upon to weigh in by Trump, the Supreme Court will have three likely options. First, it can deny the stay and refuse to take up the case. And it should. To grant a stay at this juncture, the court must decide that Trump has a significant shot at success on the merits. But he doesn’t, and it’s not even close, as the D.C. Circuit has shown. So granting a stay would require distortion of the usual rules to make a special accommodation for Trump only, a terrible look for a court already thrust into the vortex of politics.

And yet, there are good reasons to believe that many justices will feel that a lower court should not have the last word on this matter, and that the highest court in the land should step in with definitive resolution. This case is, after all, both a neutron bomb launched into a presidential election and a consequential assault on settled principles around the limits of the separation of powers. So the court’s second option is to grant a stay; take up the case on an expedited basis, as it did with the ballot disqualification dispute; hear arguments soon; and hand down a decision by June. Even this quick timeline, though, could make it very difficult for Chutkan to hold a trial before November. After all, the Justice Department has an unwritten rule not to take any action within 60 days of an election that could affect the election outcome. This trial could take at least two to three months, bringing the proceedings perilously close to Election Day.

Third, the court could summarily affirm, issuing a one-line decision that simply says the D.C. Circuit got it right, without holding oral arguments. If the court does want to issue the last word here, though, it seems unlikely to do so without lengthier consideration and explanation. It seems, as professor Steve Vladeck has noted, that the justices must either go all the way in or stay all the way out in this instance.

We are thus reduced to counting votes, as we did in the run-up to arguments in Bush v. Gore, and also to counting minutes, as we did after arguments in Bush v. Gore. Taking up a case requires four votes. Granting a stay requires five votes. Summary affirmance requires six votes (though in rare circumstances, the court will issue one with only five votes). If we assume the liberal justices want to deny a stay and rid themselves of this case fast, the case likely comes down to Chief Justice John Roberts, as well as Justices Amy Coney Barrett, Brett Kavanaugh, and perhaps Neil Gorsuch. Justice Clarence Thomas’ wife attended the rally that preceded and egged on the insurrection, and he, along with Justice Samuel Alito, has frequently voted to shield Trump from scrutiny. Thus, the less extreme conservatives hold the former president’s fate in their hands.

I would add that there is at least in theory a fourth option: Deny the stay and still grant the cert petition. It doesn’t make much sense—it allows the trial to go forward while the Court considers the immunity question. But if there are only 4 votes to hear the case and not 5 for a stay, isn’t that what would happen? It would be a function of the different voting rules.

I’ll have more to say about both Trump cases coming to the Supreme Court in a Slate column tomorrow.