Mike Johnson says the quiet part on Fox
"The justices on the court — I know many of them personally ... they'll set this straight."
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It was a given, of course, that Trump backers would spring to his defense following his conviction on 34 felony counts of falsifying business records.
Trump’s supporters are trying to dox the jurors, a sheriff is saying that it’s time we put a felon in the White House, and a bunch of MAGAs are flying the American flag upside down (though we have no update from the Alitos on the status of their flagpole). One of Trump’s lawyers and his legal spokesperson have both gone on Fox News and called on the Supreme Court to get their client off the hook. (More on that later.)
But one statement stands out in all this sound and furor: GOP House Speaker Mike Johnson’s call for SCOTUS to “step in.”
The morning after the conviction, Johnson went on Fox & Friends to reassure Trump supporters that he has the ear of the justices.
“I think that the justices on the court — I know many of them personally — I think they’re deeply concerned about [Trump’s conviction], as we are. So I think they’ll set this straight, but it’s going to take awhile.”
Johnson went on to say “this will be overturned, guys, there’s no question about it. It’s just going to take some time to do it.” (Watch below.)
This remarkable statement highlights how Republicans have come to — correctly — count on the federal courts to ensure they stay in power.
The Supreme Court already overturned Colorado’s decision to remove Trump from the ballot and agreed to hear his outrageous absolute immunity claim in the January 6 case after refusing to hear it on an expedited basis when asked by prosecutor Jack Smith. That foot-dragging resulted in the March 4 date for Trump’s DC trial being removed from the calendar, and it’s exceedingly unlikely there will be a new trial date before the election.
So why wouldn’t Johnson look to the conservatives on the Supreme Court to save Trump this time around?
On yesterday’s edition of Fox News Sunday, Johnson tried to walk back his comments a bit, telling Shannon Bream, "of course I haven't had conversations with the justices. I just know their character, their personality." But this statement isn’t really much better. In fact, it might be worse, as it now sounds like Johnson is so sure the right-wingers on the Court will mobilize to protect Trump that he wouldn’t even need to talk with them about it. [Update: Trump himself on Sunday evening pleaded for SCOTUS to prevent his sentencing next month, falsely claiming on Truth Social that the justices “MUST DECIDE!”]
A normal Supreme Court would stay out of this
Before the conservative capture of the Supreme Court, most legal analysts would likely have brushed away Johnson’s comments as mere wish-casting rather than a serious suggestion that the Court should consider taking the case. That’s because Trump’s conviction was in New York state court, based on a New York state statute. The Supreme Court does have the power to review cases from state courts, but its own past decisions sharply curtail which cases they will hear.
The US Supreme Court will only review final state court judgments — cases already addressed by the state's highest court. So, Trump would first need to appeal his case to New York’s intermediate appellate court. If that court decided against Trump, he could petition New York’s highest state court, the New York Court of Appeals. If that court refused to hear the case, that would be a decision from New York’s highest court, and Trump could then petition the US Supreme Court for review. If New York’s highest state court agreed to hear Trump’s case, he could not petition the US Supreme Court for review until the New York Court of Appeals issues its decision.
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This is not a quick procedure. The First Appellate Division, where Trump would first appeal, hears roughly 3,000 cases and 6,000 motions per year. It can take several months to get an oral argument date and a few additional months to get a decision. The New York Times stated it’s most likely the oral arguments wouldn’t occur until next year, and a decision could come as late as 2026 — and that’s before any petition for review to New York’s highest court. In short, Mike Johnson is going to be waiting a long time.
It’s not just the timing that’s a problem for Trump here. Besides holding that it will only hear state court cases after a final state court decision has been issued, the Supreme Court has also held that if a state court decision rests on “adequate and independent state grounds,” it will not review any question of federal law the case might have also contained, even if the state court got the federal issue wrong. This rule is known as the State Grounds Doctrine and means the Court cannot review state court decisions based on state law.
In the New York hush money case, Trump’s conviction rests entirely on New York state law regarding falsifying business records. Trump falsified the records to influence the election, which violates New York state law. However, Trump made multiple emergency appeal motions to try to stop the trial, including demands the judge recuse himself, asking for a change of venue, and invoking his claim of absolute presidential immunity. All of those issues were denied in the emergency setting, but Trump can still raise them again in his non-emergency direct appeal from the jury verdict.
Arguably, Trump’s claim of presidential immunity is a question of federal law that the Supreme Court could address. However, that’s only if they first determine that New York state laws regarding falsification of business records and attempting to unlawfully influence an election are not adequate grounds for Trump’s conviction. Politico and the New York Times spoke to legal experts who said this path to the Supreme Court is extremely unlikely.
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But this is not a normal Supreme Court
Of course, all of this is predicated on the notion that the Supreme Court will follow its own precedent. But right-wingers on the Court have not been terribly interested in doing so.
They threw out the right to abortion, handwaving away the precedent set by Roe v. Wade. The conservatives on the Court also threw out 45 years of precedent when they got rid of affirmative action in college admissions last year. It also looks likely that the Court will get rid of the Chevron doctrine, a nearly 40-year-old precedent that requires federal courts to give deference to agency interpretations of statutes. Justice Clarence Thomas has a laundry list of other cases he wants overturned, including Griswold v. Connecticut, which held that laws restricting adult access to birth control were illegal, and Obergefell v. Hodges, which legalized same-sex marriage. The GOP appointees do not feel at all bound by past cases.
Related to this is the issue of right-wing justices who are completely unconcerned about being impartial and do not consider themselves bound by ethics rules. At least two justices — Samuel Alito and Thomas — appear to have actively support Trump’s insurrection efforts yet have refused calls to recuse on Trump-related cases. Chief Justice John Roberts isn’t interested in reining anyone in, saying only that individual justices can decide when to recuse. And let’s not forget how willfully Thomas flouts ethics rules regarding financial disclosures because he simply cannot resist the largesse of conservative billionaires.
None of this is to say that the Court will definitely take up an appeal on Trump’s conviction. To do so would shatter a longstanding norm, and the conviction doesn’t prevent Trump from running for office, so the Court may be disinclined to sully itself in this instance. But, as with all other things related to the Court, should they choose to throw out their own rule book just to benefit Trump, there’s no recourse and no stopping them.
All of this highlights how fragile American democracy is and how ill-equipped we are to deal with those who simply refuse to follow rules and norms. Mike Johnson’s offhand mention that he’s already aware of the justices’ feelings about a case and his breezy reassurance that the Supreme Court will rescue Trump from himself should be a five-alarm fire, a scandal everyone instinctively realizes represents a complete corrosion of the independence of the judiciary. It’s the sort of thing that Chief Justice Roberts should race to address, complete with an explanation as to how and when the Supreme Court hears appeals from state court cases.
What Roberts has actually raced to do, however, is to tell Congress to pound sand regarding a request to appear to discuss Supreme Court ethics. According to Roberts’s letter explaining his refusal, even having to talk to Congress under the circumstances would raise issues regarding judicial independence and separation of powers. Roberts also wrote that the real problem is that only Democrats are concerned about this: “The format proposed — a meeting with leaders of only one party who have expressed an interest in matters currently pending before the Court — simply underscores that participating in such a meeting would be inadvisable.”
So, to recap: a request to discuss Supreme Court ethics when two conservative justices have openly and obviously affiliated with the former president’s coup attempt is “inadvisable” because no Republican would sign on to it. However, when the GOP House Speaker implies he has the ear of the justices, already knows how they feel, and is confident they will side with Trump, Roberts is radio silent.
A key reason the hush money trial happened in the first place is that Trump was unable to call on the protective forces of a federal judiciary stuffed with his hard-right appointees. There’s no judge in the New York state court system who is beholden to Trump, and despite trying mightily, he couldn’t get the appellate division to delay his trial.
We learned that when that protective force is stripped away, when Trump’s fate is in the hands of ordinary people rather than conservative cronies, he gets convicted. So no wonder Trump and his supporters desperately want the Supreme Court to step in.
That’s it for today
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ROBERTS: I can't meet with you guys. Separation of Powers, you know. Besides, I'm playing poker with Mike Johnson.
Reading the steps required to get to the Supreme Court and looking how Felon Trump has aged in the last few years I wonder if he'll be alive or not crippled with dementia before the Supreme Court gets a chance to sully itself further.