Some Idle Speculation About What the Supreme Court Will Do About Trump’s Request to Put His Election Subversion Case on Hold on Immunity Grounds;It’s Potentially Good News for a Trial This Spring/Summer

As ELB readers know, Donald Trump’s federal district court trial in DC on election subversion charges, that was scheduled for March, has been put on hold as Trump has pursued an “interlocutory” appeal (that is, an appeal in the middle of trial court proceedings) arguing he’s just about absolutely immune from criminal liability for an official acts as President. (Never mind that subverting the election is not an official act; the DC Circuit, which ruled against Trump, assumed for the sake of argument that at least some of it was.) After the DC Circuit ruled against him, which would send the case back for trial, Trump sought an emergency stay in the U.S. Supreme Court.

The Court has a few options, including granting the stay and setting the case for (potentially expedited) Supreme Court consideration, which could essentially allow Trump to run out the clock. Is a court really going to make him be on trial in September, in the middle of the general election campaign? That’s why I expected that if the Court was going to grant a stay, it was going to put the case on an extremely expedited schedule (as it did for the still pending Trump disqualification case out of Colorado) and potentially get us a decision by early April, allowing a trial by summer if the Court decides (as it certainly should) that he’s not absolutely immune for crimes of attempting to steal the last election.

If that stay/expedition was going to happen, I expected an order pretty quickly. Trump filed his reply brief, ending the briefing on the stay request, one week ago, on Feb. 15. If the Court was going to grant a stay, it should have quickly said so—there would be no reason for the justices in dissent, if any, to write a dissent to that order. They could include their complaints in the ultimate set of opinions on the merits of Trump’s immunity question.

So what to make of a full week passing without such an order? Maybe the Justices are still bickering behind the scenes or one or more justices are dragging their feet. But each day that passes it gets more and more likely that the Court is going to deny the stay. And that order would mean a likely big, nasty dissent (I’m thinking Alito at least, and probably Thomas, who should be recused in the case—but that’s another story). That takes a bit of time.

At some point the Justices will run out of patience, and if the dissenters don’t get their act together, an order will be forthcoming, and the case can go back to the trial court for trial prep.

Or not. Just what I’ve been thinking as we wait and wait.

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Travis Crum: “Justice Alito Embraces a Retrogression Standard”

The following is a guest post from Travis Crum:

Earlier this week, the Supreme Court denied cert in Coalition for TJ v. Fairfax County School Board, an important case about intentional discrimination and what facially neutral policies to promote diversity can be implemented after SFFA v. Harvard. Justice Alito, joined by Justice Thomas, authored a fiery dissent from denial of cert. As Rick noted on this blog, Alito’s dissental struck a very different tune than his majority opinion in Brnovich v. DNC—or, for that matter, his dissent in Inclusive Communities Project.

Here, I want to expand on Rick’s point and emphasize that Justice Alito’s approach is not your ordinary disparate impact standard, like one would use under Title VII or the Fair Housing Act (FHA). The former statute, for example, looks to the effect of a policy on the success of minority job applicants as measured against their availability in the local labor market. By contrast, Justice Alito embraced a retrogression standard—and one that applies even when a racial group is over-represented.

Continue reading Travis Crum: “Justice Alito Embraces a Retrogression Standard”
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“Tony Evers urges Wisconsin Supreme Court to reconsider congressional maps”

Milwaukee Journal-Sentinel:

Wisconsin Democratic Gov. Tony Evers is asking the state Supreme Court to take up a motion to reconsider Wisconsin’s congressional maps after the state’s legislative boundaries were changed to weaken Republicans’ grip on the state Legislature.

Evers asked the court to reconsider the congressional lines the same day he signed into law new maps that give Democrats a chance at competing for control of both chambers of the state Legislature for the first time in more than a decade.

The high-powered Democratic law firm Elias Law Group filed a motion with the Wisconsin Supreme Court last month asking the court to reconsider the congressional lines ahead of the 2024 election. The group argued new lines were warranted after the high court, when considering the legislative map challenge late last year, said it would no longer favor maps that minimize changes to existing boundary lines — a theory known as the “least-change” approach.

“Given that the maps the Governor submitted in Johnson were grounded in that ‘least change’ approach, the Governor urges the Court to review its decision and stands ready to participate in any future proceedings the Court may order,” Wisconsin Assistant Attorney General Anthony D. Russomanno wrote in a letter to the state Supreme Court clerk on Monday.

Evers’ request is the latest development in the congressional map inquiry as Democrats face a tight deadline to put new maps in place with under nine months until the November election. The court has not publicly indicated it will review the motion, and the Wisconsin Elections Commission has said that any new maps must be in place by March 15 to take effect for 2024.

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