SCOTUS Heard And Ruled On Bush v Gore In 1 DAY!

Federal courts including appellate courts, and even SCOTUS can move with lightening speed, when they want to.

If you’re in you mid-thirties or older you remember the controversy and drama of the 2000 Presidential election recount in Florida. (Yep, Florida) I’ll spare everyone all the details of the entire mess but you can read about it here if you’d like details. What matters is that with literally the Presidency on the line (whoever won Florida’s 25 electoral votes would win the Presidency and Bush’s margin was less than 600 votes when the recount began) the courts recognized the urgency. They heard complex arguments in both state and federal courts, setting quick hearing dates and issuing rulings with a speed that today seems stunning. Consider for example the way the DC court of appeals took it’s sweet time hearing the appeal of District Court judge Chutkan’s gag order. She issued the order on Oct. 26. Trump of course appealed and Nov. 3 even won a stay of the gag order until his appeal was heard and ruled on. The appeals court didn’t even set a date right away. Nope, they wouldn’t hear oral arguments until Nov. 20. And THEN, it took them over three weeks to finally issue a ruling that reinstated most, but not all of the gag order.

Let’s be clear. The appeals panel wasn’t delving into some new or esoteric area of law. In DC as in every jurisdiction there are rules people who have been criminally charged must follow while awaiting trial with provisions specific to those free on bail. Trump violated them hence the prosecution seeking and being granted a gag order. Now, gag orders aren’t common. Let’s be clear about that. But they get issued sometimes so again, this is an area of law that has been litigated plenty of times. LOTS of precedent to fall back on including first amendment arguments. The only thing different in this case is it’s Donald Trump. Who wants to be able to violate the rules ANY other criminal defendant in DC (and damned near everywhere) must follow when he’s out campaigning.

But those appellate judges in their ivory tower weren’t concerned with the impact of Trump’s antics on witnesses, the jury pool or the death threats to the judge and others. I wrote here on PZ about a couple of the casual comments made by a couple of them including the one about Jack Smith having to have a tough skin. And that no one’s skin is tough enough to stop a bullet from a crazed MAGA goober wanting to help Trump. THEY are important people and NO ONE is going to rush THEM. Like too many of their ilk they have an inflated sense of themselves.

Let’s backtrack for a moment to 2000 and the fateful Bush v Gore that literally decided a Presidential election. You can read a more detailed account here, but the key timeline is:

• Dec. 8, 2000 – FL (state) Supreme Court issues a ruling ordering a manual recount in all counties where one had not already taken place. The Bush campaign immediately petitioned SCOTUS to intervene
• Dec. 9, 2000 – SCOTUS issues a stay of the Florida Supreme Court’s order. They treated the petition as a writ of certiorari – agreed to take up the case which became Bush v Gore.
• Dec. 11, 2000 – SCOTUS hears oral arguments for Bush v Gore. In a break with tradition they allowed for extended arguments from both sides. Even more historic was that for the first time in history they allowed live audio broadcast of the proceedings. (Reinforcing my point that when they want to federal courts can do set aside “custom.”)
• Dec. 12, 2000 – SCOTUS issues a short, per curiam decision citing equal protection grounds to halt the manual counting of votes. (It was a bit more complicated than that but the practical effect of the ruling meant that the recount was over and since Bush was ahead at that point he “won” the election)

THAT folks is how fast courts (state and federal) can move when something is important and a freaking Presidential election sure as hell qualifies as being of such national importance that serious legal issues related to it be handled swiftly. Oh, lest we forget things moved just as swiftly with all of Trump’s bogus 2020 legal challenges in multiple states. And when it had to weigh in SCOTUS wasted no time either. I’m sure that’s something that’s on their minds and if not Jack Smith will be reminding them!

January 6, the events we all saw unfold that day is unique in our history. For the very first time we had a President who refused to transfer power to a duly elected successor. Worse, as part of a multi-faceted plan to stay in office he fometed a riot at the U.S. Capitol to stop the counting of electoral votes. Crimes were committed and Trump was among those charge with committing January 6 related crimes. So he was indicted and formal charges were brought in court. There is no reason, none that his trial in DC can’t start on or very close to schedule in the first week of March 2024. Trump’s problem is that he’s dealing with a set of federal District Court judges who are experienced including in handling J6 cases and almost all of them are about the law and only the law. No matter who the defendant might be.

They’ve all gotten there share of threats over the years and plenty since J6 cases started moving through the system. Most are no-nonsense and move things along, and judge Tanya Chutkan falls in that category. She is smart, experienced (including a stint as a defense lawyer) and tough. Trump has tried and failed to bully her. Worse for him she’s been moving things right along, hence his gambit to get the whole case delayed on “Presidential Immunity” grounds which in the normal course of things would push his trial date past the election.

Probably even without SCOTUS weighing in which it would eventually have to do. However, Trump was counting on the DC court of appeals acting like it did with the gag order only worse. With a novel legal argument and the importance of the case and it being unique (no former President has ever stood criminal trial) their schedule for filing and responding to briefs would likely mean no hearing until well after the first of the year. Maybe not till spring. And then months more before issuing a ruling. Practically speaking that would do exactly what Trump wants which is to delay the trial past the election since win or lose SCOTUS would get involved.

Now Special Counsel Jack Smith has blown all that out of the water.  He used a provision in the law that allowed him to file an emergency appeal to SCOTUS to take up Trump’s novel Presidential Immunity. Within hours SCOTUS did two things. First it said they’d hear jhear arguments. Here’s what’s even more stunning. SCOTUS has required Trump’s lawyers to respond to Smith’s motion next week! Reading tea leave with this or any past group of Justices has always been a crapshoot. Even questions during oral arguments that suggest a Justice leans one way often lead to predictions of how they’ll rule to be wrong. Still, there’s every indication from what’s taken place since noon that the Justices believe there IS a sense of urgency.

Basically, SCOTUS has already begun an expedited process for hearing and deciding the case. As I wrote in a comment earlier Smith seems awfully sure he’s got the legal and Constitutional issues on his side and has a bulletproof argument. The reaction from conservatives (who’ve been howling in protest) is that Smith is right. SCOTUS will have a hard time siding with Trump, and that’s assuming anyone other than Thomas and Alito thinks there’s at least some merit to Trump’s argument.

I wanted to write about this earlier but I wanted to wait because there’s one other issue I wasn’t sure about. However, it’s past ten pm where I live and as I write this I’m not hearing ANYTHING about SCOTUS issuing a stay that halts judge Chutkan in her tracks. Those letters calling for potential jurors to report to complete initial Voir Dire questionnaires can proceed. So can her schedule for hearing motions in the works or that will come up. All that means if as the odds seem SCOTUS rules in the government’s favor Trump’s DC trial WILL start in early March!

There’s another Trump appeal sitting with the DC court of appeals I won’t get into. But I hope those judges take a hard look up the line and see that SCOTUS clearly believes this is a case that needs to be dealt with swiftly. No dicking around. No, “We are oh so important FEDERAL judges and we’ll get around to it whenever we feel like it” type stuff. Keep in mind the DC Circuit is the premier one in the country. They hear the lion’s share of the weightiest appeals, and more of their judges get considered for SCOTUS vacancies than any other circuit. Screwing around like they did with the gag order won’t bode well for SCOTUS aspirants from that circuit when the next opening(s) come. SCOTUS has just sent a not at all subtle rocket down the chain that some cases, as in the ones regarding Trump are of national importance of a level that courts need to move at all possible speed.

Back during the Nixon/Watergate era SCOTUS moved with speed given the importance of what was at stake. It looks like this court is for a change going to make like their predecessors. And that’s very bad news for Trump.

Stay tuned because this is going to result in legal/political explosion after explosion. Thinking back to my jarhead days it makes me think of calling in mortar or artillery. The initial shot(s) are noted and fire is adjusted. But once the target is “dialed in” the radio call “fire for effect” is made and hell is rained down on the target. I think we’re at the point of “fire for effect” with Trump’s legal jeopardy. It will be a delicious bit of irony if “his” SCOTUS is the one to make that call.