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    Why Democracy Lives and Dies by Math

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    A documentary filmmaker and a mathematician discuss our fear of numbers and its civic costs.“Math is power” is the tag line of a new documentary, “Counted Out,” currently making the rounds at festivals and community screenings. (It will have a limited theatrical release next year.) The film explores the intersection of mathematics, civil rights and democracy. And it delves into how an understanding of math, or lack thereof, affects society’s ability to deal with its most pressing challenges and crises — health care, climate, misinformation, elections.“When we limit access to the power of math to a select few, we limit our progress as a society,” said Vicki Abeles, the film’s director and a former Wall Street lawyer.Ms. Abeles was spurred to make the film in part in response to an anxiety about math that she had long observed in students, including her middle-school-age daughter. She was also struck by the math anxiety among friends and colleagues, and by the extent to which they tried to avoid math altogether. She wondered: Why are people so afraid of math? What are the consequences?One of many mathematicians who share their perspectives in the film is Ismar Volic, a professor at Wellesley College and a founder, in 2019, of the Institute for Mathematics and Democracy. He is also the author of “Making Democracy Count: How Mathematics Improves Voting, Electoral Maps and Representation.”Dr. Volic grew up in Bosnia-Herzegovina, a country that in the early 1990s went through “a horrific war,” he said. “I am familiar with what collapse of democracy can lead to.” He saw parallels between what happened in Bosnia and what was happening in the United States and around the world. “That has driven me in the last few years, understanding the mechanics of democracy, the infrastructure of democracy, which is very much mathematical,” he said.The following conversation, conducted by videoconference and email, has been condensed and edited for clarity.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber? Log in.Want all of The Times? Subscribe. More

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      Harvard’s Black Student Enrollment Declines After Affirmative Action

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      Defying expectations, a Supreme Court decision curtailing race-based admissions still had a relatively small impact at some highly selective schools like Harvard, even as other schools saw big changes.The predictions were dire. In the course of a bitterly contested trial six years ago, Harvard University said that if it were forced to stop considering race in admissions, the diversity of its undergraduate classes would be badly compromised.Now, a year after the Supreme Court struck down the school’s admissions system, effectively ending affirmative action in college admissions everywhere, the numbers are in for the first class to be admitted, and the picture is more nuanced and complex than predicted.The proportion of Black first-year students enrolled at Harvard this fall has declined to 14 percent from 18 percent last year, according to data released by the institution on Wednesday — a dip smaller than the school had predicted, but still significant.Asian American representation in the class of 1,647 students remained the same as last year, at 37 percent. Hispanic enrollment has gone up, to 16 percent from 14 percent. Harvard did not report the share of white students in the class, consistent with past practice, and it is hard to make inferences because the percentage of students not disclosing race or ethnicity on their applications doubled to 8 percent this year from 4 percent last year.The post-affirmative-action demographic breakdowns have been trickling out over the last three weeks, and overall Black students appear to have been most affected. The percentages of Black students declined sharply at some elite schools, although surprisingly, they held steady at others. The suit against Harvard had accused it of discriminating against Asian Americans to depress their numbers, while giving preferences to members of other minority groups. Admissions experts suggested even before the new numbers came out that the most coveted schools, like Harvard, Yale and Princeton, would be best positioned to maintain their Black enrollment because the students who were admitted to them were very likely to accept. So in that view, they are unicorns, part of a highly selective ring of schools that scooped up the top students and remained relatively unaffected by the ban on race-conscious admissions.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber? Log in.Want all of The Times? Subscribe. More

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      Supreme Court Immunity Ruling Escalates Long Rise of Presidential Power

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      Beyond Donald J. Trump, the decision adds to the seemingly one-way ratchet of executive authority.The Supreme Court’s decision to bestow presidents with immunity from prosecution over official actions is an extraordinary expansion of executive power that will reverberate long after Donald J. Trump is gone.Beyond its immediate implications for the election subversion case against Mr. Trump and the prospect that he may feel less constrained by law if he returns to power, the ruling also adds to the nearly relentless rise of presidential power since the mid-20th century.It had seemed like a constitutional truism in recent years when more than one lower-court opinion addressing novel legal issues raised by Mr. Trump’s norm-breaking behavior observed that presidents are not kings. But suddenly, they do enjoy a kind of monarchical prerogative.“The relationship between the president and the people he serves has shifted irrevocably,” Justice Sonia Sotomayor wrote in an outraged dissent joined by the court’s other two liberals. “In every use of official power, the president is now a king above the law.”Dismissing those worries, Chief Justice John G. Roberts Jr., writing for the majority, argued that presidents stand apart from regular people, so protecting them from prosecution if they are accused of abusing their powers to commit official crimes is necessary.“Unlike anyone else,” he wrote, “the president is a branch of government, and the Constitution vests in him sweeping powers and duties.”We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber? Log in.Want all of The Times? Subscribe. More

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      Alito and Roberts, Secretly Recorded at Gala, Share Markedly Different Worldviews

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      The two justices were surreptitiously recorded at a Supreme Court gala last week by a woman posing as a Catholic conservative.Justice Samuel A. Alito Jr. told a woman posing as a Catholic conservative last week that compromise in America between the left and right might be impossible and then agreed with the view that the nation should return to a place of godliness.“One side or the other is going to win,” Justice Alito told the woman, Lauren Windsor, at an exclusive gala at the Supreme Court. “There can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised.”Ms. Windsor pressed Justice Alito further. “I think that the solution really is like winning the moral argument,” she told him, according to the edited recordings of Justice Alito and Chief Justice John G. Roberts Jr., which were posted and distributed widely on social media on Monday. “Like, people in this country who believe in God have got to keep fighting for that, to return our country to a place of godliness.”“I agree with you, I agree with you,” he responded.The justice’s comments appeared to be in marked contrast to those of Chief Justice Roberts, who was also secretly recorded at the same event but who pushed back against Ms. Windsor’s assertion that the court had an obligation to lead the country on a more “moral path.”“Would you want me to be in charge of putting the nation on a more moral path?” the chief justice said. “That’s for people we elect. That’s not for lawyers.”Ms. Windsor pressed the chief justice about religion, saying, “I believe that the founders were godly, like were Christians, and I think that we live in a Christian nation and that our Supreme Court should be guiding us in that path.”We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber? Log in.Want all of The Times? Subscribe. More

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      Chief Justice Extols Legacy of Sandra Day O’Connor

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      In remarks at an award ceremony, Chief Justice John G. Roberts Jr. described his colleague as a trailblazing and civic-minded presence on the Supreme Court.Chief Justice John G. Roberts Jr. delivered a fond tribute to former Justice Sandra Day O’Connor on Thursday, celebrating her legacy as the first woman on the Supreme Court and her commitment to advancing civics and civility after her retirement.During an award ceremony at Duke University to recognize her contribution to civics education, Chief Justice Roberts reiterated his admiration of his former colleague, a crucial swing justice who was often referred to as the most powerful woman in America. He eulogized her in December shortly after her death at 93.“Sandra Day O’Connor expanded the public image of what it meant to look like a judge,” he said. “She sounded the alarm about the growing lack of appreciation of what it means to be a citizen.”For her work in civics education, she was recognized on Thursday with the Bolch Prize for the Rule of Law, an award that has often been given to honor judges, including former Justice Anthony M. Kennedy, for lifetime achievements. The award was accepted by her son Scott O’Connor.The paths of Chief Justice Roberts and Justice O’Connor have long intersected.On his first day of work at the Justice Department in 1981, the young Mr. Roberts was assigned to help prepare the future justice for her confirmation hearings in the Senate, putting together draft answers to questions he expected her to face. She was ultimately confirmed by a vote of 99 to 0.Justice O’Connor would then sit on the bench for every one of the more than three dozen cases Chief Justice Roberts argued before the Supreme Court as a lawyer, he told the audience on Thursday.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber? Log in.Want all of The Times? Subscribe. More

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      How the Supreme Court May Rule on Trump’s Presidential Run

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      The legal issues are novel and tangled, experts said, and the justices may be wary of knocking a leading presidential candidate off the ballot.The Supreme Court, battered by ethics scandals, a dip in public confidence and questions about its legitimacy, may soon have to confront a case as consequential and bruising as Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush.Until 10 days ago, the justices had settled into a relatively routine term. Then the Colorado Supreme Court declared that former President Donald J. Trump was ineligible to hold office because he had engaged in an insurrection. On Thursday, relying on that court’s reasoning, an election official in Maine followed suit.An appeal of the Colorado ruling has already reached the justices, and they will probably feel compelled to weigh in. But they will act in the shadow of two competing political realities.They will be reluctant to wrest from voters the power to assess Mr. Trump’s conduct, particularly given the certain backlash that would bring. Yet they will also be wary of giving Mr. Trump the electoral boost of an unqualified victory in the nation’s highest court.Chief Justice John G. Roberts Jr. will doubtless seek consensus or, at least, try to avoid a partisan split of the six Republican appointees against the three Democratic ones.He may want to explore the many paths the court could take to keep Mr. Trump on state ballots without addressing whether he had engaged in insurrection or even assuming that he had.Among them: The justices could rule that congressional action is needed before courts can intervene, that the constitutional provision at issue does not apply to the presidency or that Mr. Trump’s statements were protected by the First Amendment.“I expect the court to take advantage of one of the many available routes to avoid holding that Trump is an insurrectionist who therefore can’t be president again,” said Nicholas Stephanopoulos, a law professor at Harvard.Such an outcome would certainly be a stinging loss for Mr. Trump’s opponents, who say the case against him is airtight. But the Supreme Court would be attracted to what it would present as a modest ruling that allows Mr. Trump to remain on the ballot.“This is a fraught political issue,” said Derek Muller, a law professor at the University of Notre Dame. “I think there will be an effort for the court to coalesce around a consensus position for a narrow, unanimous opinion. That probably means coalescing around a position where Trump stays on the ballot.”If there is a consensus among legal experts, it is that the Supreme Court must act.“For the sake of the country, we need resolution of this issue as soon as possible,” said Richard L. Hasen, a law professor at the University of California, Los Angeles. “Republican primary voters deserve to know if the candidate they are considering supporting is eligible to run. Otherwise they waste their votes on an ineligible candidate and raise the risk of the party nominating an ineligible candidate in the general election.”Mr. Trump was disqualified in Colorado and Maine based on Section 3 of the 14th Amendment, which bars officials who have taken an oath to support the Constitution from holding office if they then engage in an insurrection.Professor Stephanopoulos said those determinations were legally sound. But he added that he was “highly skeptical” that the Supreme Court, which has a six-justice conservative supermajority, would agree.“I think Roberts very much doesn’t want the court disrupting a presidential election, especially based on a novel legal theory that doesn’t have years of support from conservative judges and academics,” Professor Stephanopoulos said. “I also doubt that the court’s conservative justices want to start a civil war within the Republican Party by disqualifying the candidate whom most Republican voters support.”Tara Leigh Grove, a law professor at the University of Texas, said the court has no options that will enhance its prestige.“Although many members of the public would of course embrace a decision affirming the Colorado Supreme Court,” she said, “others would recoil at the decision. I don’t think there is any way for the Supreme Court to issue a decision on this issue that will clearly enhance its legitimacy with the public as a whole.”Former President Donald J. Trump was disqualified from the Republican primaries in Colorado and Maine based on Section 3 of the 14th Amendment.Rachel Mummey for The New York TimesShe proposed a general rule of thumb: “Whenever the Supreme Court considers a truly extraordinary constitutional case, it must confront at least two issues: first, what is the better answer to the legal question; and second, how confident are the justices in that answer.”“When it comes to cases that will have a massive impact on society,” she said, “one might assume that the confidence level has to be particularly high.”In her ruling on Thursday, Secretary of State Shenna Bellows of Maine wrote that the facts about Mr. Trump’s conduct were “not in serious dispute.”“The record establishes that Mr. Trump, over the course of several months and culminating on Jan. 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power,” she wrote, adding: “The weight of the evidence makes clear that Mr. Trump was aware of the tinder laid by his multimonth effort to delegitimize a democratic election, and then chose to light a match.”Like the Colorado Supreme Court, Ms. Bellows put her ruling on hold while appeals move forward. That means the U.S. Supreme Court has some breathing room.The Colorado case is already before the justices in the form of a petition seeking review filed by the state’s Republican Party, which urged the court to resolve the case by March 5, when many states, including Colorado and Maine, hold primaries. Otherwise, they said, voters “will face profound uncertainty and the electoral process will be irrevocably damaged.”The six voters who prevailed in the Colorado case asked the justices to move even faster, culminating in a decision on the merits by Feb. 11.Professor Hasen said the ruling from Maine added to the need for prompt resolution.“The fact that a second state, at least for now, has ruled Trump ineligible for the ballot puts major pressure on the Supreme Court to intervene in the case and to say something about how to apply Section 3 to Trump,” he said. “The plaintiffs bringing these lawsuits are relentless, and they will keep trying to get Trump removed.”Agreeing to hear the case is one thing. Resolving it is another. As the Colorado Supreme Court recognized, there are at least eight discrete issues in the case, and the voters challenging Mr. Trump’s eligibility must prevail on all of them.“For Trump to win, he only needs to win on one issue,” Professor Muller said. “There are many options at the court’s disposal.”On the other hand, leading conservative law professors who have examined the original meaning of Section 3, which was adopted after the Civil War, have recently concluded that it plainly applies to Mr. Trump and bars him from another term. Such originalist arguments generally resonate with the court’s most conservative members.But other considerations may prevail.“As much as the court may want to evade politics in its decisions, it’s unavoidable,” Professor Muller said. “The best it can do right now is try to achieve consensus to avoid the appearance of partisanship.” More

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      The Supreme Court’s Big Trump Test Is Here

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      A generation after the Supreme Court stepped into a disputed presidential election, America is experiencing a creeping sense of déjà vu. Twenty-three years ago, a bare majority of the justices halted a recount in Florida, effectively handing the presidency to George W. Bush.The specter of Bush v. Gore, the case that stands as a marker of how not to resolve searing political disputes, looms large as the Supreme Court is being called upon to address controversies with profound implications for the fortunes of the Republican front-runner in 2024.The justices are feeling the heat nearly a year in advance of an election rather than in the fraught weeks following the vote. The questions today are more complex — there are at least three separate matters, not one — and all revolve around the Capitol insurrection that transpired across the street from the Supreme Court Building in 2021.On Friday, the court turned down Special Counsel Jack Smith’s request for fast-track review of Donald Trump’s claim that former presidents have “absolute immunity” from criminal prosecution for their conduct while in office. But that critical question will almost certainly return to the Supreme Court soon: The D.C. federal appeals court is hearing the case on Jan. 9 and will probably rule shortly thereafter.The court has agreed to hear a case asking whether Jan. 6 rioters can be charged with obstructing an official proceeding, another key part of Mr. Smith’s Jan. 6 case against Mr. Trump. And most dramatically, the former president will surely ask the justices to reverse a ruling of the Colorado Supreme Court that, if affirmed, could pave the way for an untold number of states to erase his name from the ballot.For a tribunal that is supposed to sit far away from, not astride, politics, that’s a lot for the Supreme Court to handle. And this is happening at a rough moment for the court. In August 2000, on the eve of Bush v. Gore, 62 percent of Americans approved of how the Supreme Court was conducting itself. Now, recent polling shows that nearly that portion (58 percent) disapproves of the institution, a figure that scrapes historic lows for the court.Yet the multiplicity of cases affords the justices an opportunity to avoid pinning themselves in still further if they keep an eye on how potential decisions will — collectively — shape the political landscape. The point is not that getting the underlying legal questions “right” is irrelevant. But when the stakes are this high and the legal questions are novel, the justices have a duty to hand down decisions that resonate across the political spectrum — or at least that avoid inciting violence in the streets. That’s not subverting the rule of law; it’s preserving it.Extraordinary times call for a court that embraces the art of judicial statecraft.The trap the court finds itself in is largely a function of its own behavior, both on and off the bench. The 6-to-3 conservative supermajority has radically expanded gun rights, circumscribed the Environmental Protection Agency’s ability to protect the environment, all but eviscerated race-based affirmative action, punched holes through the wall separating church from state and — most notoriously — eliminated the constitutional right to abortion. The past year has also seen increasing public scrutiny of the justices’ apparent ethical lapses, sunlight that pushed the justices to adopt their first code of ethics.A universe in which the court somehow splits the difference — for example, keeping Mr. Trump on the ballot while refusing to endorse (if not affirmatively repudiating) his conduct and spurning his kinglike claim to total immunity — could go a long way toward reducing the temperature of the coming election cycle. Such an outcome could also help restore at least some of the court’s credibility.We understand that trying too hard to project an image of nonpartisanship carries risks. Recent reporting on the twists and turns of how the conservative majority engineered the end of Roe v. Wade shows how curating rulings can make justices look too clever by half — if not outright deceptive. Delaying the grant of review in the Dobbs v. Jackson Women’s Health Organization case, in which some of the conservative justices apparently knew they had the votes to overrule Roe, created a false impression that the court was struggling over the matter — when the reality was anything but. Indeed, the Dobbs experience and its aftermath might have led some justices to sour on the idea of judicial statecraft — especially if their internal deliberations end up getting leaked to the press. No jurist wants to be seen as a cunning manipulator of public opinion.And yet, some of the court’s most important rulings across its history have represented just the kind of high constitutional politics that we believe are called for now. The court’s recognition of its power to strike down acts of Congress in Marbury v. Madison came in a context in which the direct effect of the ruling was to restrain the court while slapping the Jefferson administration on the wrist.Its concerted effort to produce unanimous opinions in some of the landmark civil rights cases of the 1950s and 1960s reflected a view that speaking in one voice was more important than the legal nuances of what was said. (This, perhaps, is why no justice publicly dissented from Friday’s decision not to fast-track the immunity question.)The court’s landmark rejection of President Richard Nixon’s executive privilege claim in the Watergate tapes case, which helped to directly precipitate Nixon’s resignation, came in a unanimous opinion written by Nixon’s handpicked chief justice.This is also the best way to understand Chief Justice John Roberts’s much-maligned 2012 vote in the first serious challenge to the Affordable Care Act — upholding the individual mandate as a tax while rejecting it as a valid regulation of interstate commerce.What those (and other) rulings have in common was the sense, across the Supreme Court, that the country would be better off with a court that took appropriate measure of how its rulings would be received beyond the details of the legal analysis the justices provided.The court failed that test in Bush v. Gore — handing down a ruling widely perceived as Republican-appointed justices installing a Republican president via a strained (and oddly cabined) reading of the Equal Protection Clause and helping to precipitate the downturn in public opinion that figures so prominently in these cases.As the Jan. 6 cases put the justices right in the middle of the 2024 election, the question is whether they’ll understand the imperative of not letting history repeat.Ultimately, these contemporary disputes may not provide a perfect opportunity for the Supreme Court to right that wrong. But if one thing’s for certain, it’s that neither the court nor the country can afford another election-altering ruling that takes such obvious partisan sides.Steven V. Mazie (@stevenmazie) is the author of “American Justice 2015: The Dramatic Tenth Term of the Roberts Court” and is the Supreme Court correspondent for The Economist. Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, writes the One First weekly Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Instagram, TikTok, X and Threads. More

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      New Trump Cases Shadowed by Rocky Relationship With Supreme Court

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      Though he appointed three justices, his administration had the worst track record before the justices since at least the 1930s.“I’m not happy with the Supreme Court,” President Donald J. Trump said on Jan. 6, 2021. “They love to rule against me.”His assessment of the court, in a speech delivered outside the White House urging his supporters to march on the Capitol, had a substantial element of truth in it.Other parts of the speech were laced with fury and lies, and the Colorado Supreme Court cited some of those passages on Tuesday as evidence that Mr. Trump has engaged in insurrection and was ineligible to hold office again.But Mr. Trump’s reflections on the U.S. Supreme Court in the speech, freighted with grievance and accusations of disloyalty, captured not only his perspective but also an inescapable reality. A fundamentally conservative court, with a six-justice majority of Republican appointees that includes three named by Mr. Trump himself, has not been particularly receptive to his arguments.Indeed, the Trump administration had the worst Supreme Court record of any since at least the Roosevelt administration, according to data developed by Lee Epstein and Rebecca L. Brown, law professors at the University of Southern California, for an article in Presidential Studies Quarterly.“Whether Trump’s poor performance speaks to the court’s view of him and his administration or to the justices’ increasing willingness to check executive authority, we can’t say,” the two professors wrote in an email. “Either way, though, the data suggest a bumpy road for Trump in cases implicating presidential power.”Now another series of Trump cases are at the court or on its threshold: one on whether he enjoys absolute immunity from prosecution, another on the viability of a central charge in the federal election-interference case and the third, from Colorado, on whether he was barred from another term under the 14th Amendment.The cases pose distinct legal questions, but earlier decisions suggest they could divide the court’s conservative wing along a surprising fault line: Mr. Trump’s appointees have been less likely to vote for him in some politically charged cases than Justice Clarence Thomas, who was appointed by the first President Bush, and Justice Samuel A. Alito Jr., who was appointed by the second one.In his speech at the Ellipse on Jan. 6, Mr. Trump spoke ruefully about his three appointees: Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, suggesting that they had betrayed him to establish their independence.“I picked three people,” he said. “I fought like hell for them.”In a speech at the Ellipse on Jan. 6, 2021, Mr. Trump spoke ruefully about his three appointees and suggested that they had betrayed him to establish their independence.Pete Marovich for The New York TimesMr. Trump said his nominees had abandoned him, blaming his losses on the justices’ eagerness to participate in Washington social life and to assert their independence from the charge that “they’re my puppets.”He added: “And now the only way they can get out of that because they hate that it’s not good in the social circuit. And the only way they get out is to rule against Trump. So let’s rule against Trump. And they do that.”Mr. Trump has criticized Chief Justice John G. Roberts Jr. on similar grounds. When the chief justice cast the decisive vote to save the Affordable Care Act in 2012, Mr. Trump wrote on Twitter that “I guess @JusticeRoberts wanted to be a part of Georgetown society more than anyone knew,” citing a fake handle. During his presidential campaign, Mr. Trump called the chief justice “an absolute disaster.”When he spoke on Jan. 6, Mr. Trump was probably thinking of the stinging loss the Supreme Court had just handed him weeks before, rejecting a lawsuit by Texas that had asked the court to throw out the election results in four battleground states.Before the ruling, Mr. Trump said he expected to prevail in the Supreme Court, after rushing Justice Barrett onto the court in October 2020 in part in the hope that she would vote in Mr. Trump’s favor in election disputes.“I think this will end up in the Supreme Court,” Mr. Trump said of the election a few days after Justice Ruth Bader Ginsburg’s death that September. “And I think it’s very important that we have nine justices.”After the ruling, Mr. Trump weighed in on Twitter. “The Supreme Court really let us down,” he said. “No Wisdom, No Courage!”The ruling in the Texas case was not quite unanimous. Justice Alito, joined by Justice Thomas, issued a brief statement on a technical point.Those same two justices were the only dissenters in a pair of cases in 2020 on access to Mr. Trump’s tax and business records, which had been sought by a New York prosecutor and a House committee.The general trend continued after Mr. Trump left office. In 2022, the court refused to block the release of White House records concerning the Jan. 6 attack on the Capitol, effectively rejecting Mr. Trump’s claim of executive privilege. The court’s order let stand an appeals court ruling that Mr. Trump’s desire to maintain the confidentiality of internal White House communications was outweighed by the need for a full accounting of the attack and the disruption of the certification of the 2020 electoral count.Only Justice Thomas noted a dissent. His participation in the case, despite his wife Virginia Thomas’s own efforts to overturn the election, drew harsh criticism.Mr. Trump’s rocky record at the court offers only hints about how the justices will approach the cases already before them and on the horizon. His claim of absolute immunity appears vulnerable, based on other decisions from the court on the scope of presidential power.The case examining one of the federal statutes relied on by the special counsel in the federal election-interference case, which makes it a crime to corruptly obstruct an official proceeding, does not directly involve Mr. Trump, though the court’s ruling could undermine two of the charges against him.Mr. Trump’s rocky record at the court offers only hints about how the justices will approach the cases already before them and on the horizon.Erin Schaff/The New York TimesThe justices have been skeptical of broad interpretations of federal criminal laws, and the arguments in the case will doubtless involve close parsing of the statute’s text.The case that is hardest to assess is the one from Colorado, involving as it does a host of novel questions about the meaning of an almost entirely untested clause of the 14th Amendment, one that could bar Mr. Trump from the presidency. The case is not yet at the Supreme Court, but it is almost certain to arrive in the coming days.Guy-Uriel E. Charles, a law professor at Harvard, said the justices would have to act.“The Supreme Court is a contested entity, but it is the only institution that can weigh in and try to address this problem, which needs a national resolution,” he said. “There has been some loss of faith in the court, but even people who are deeply antagonistic to it believe it needs to step in.” More

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      in Elections

      Why Jack Smith Is Taking Trump’s Immunity Claim Straight to the Supreme Court

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      The special counsel has substantive and procedural reasons for wanting a quick ruling on whether Donald Trump can be prosecuted for his actions as president.Jack Smith, the special counsel who has brought two cases against former President Donald J. Trump, made a bold move this week designed to undercut one of Mr. Trump’s chief defenses against accusations of plotting to overturn the 2020 election.Mr. Smith asked the Supreme Court to rule on Mr. Trump’s attempts to have the election subversion charges dismissed on a sweeping claim of executive immunity before a lower appeals court even has the chance to consider the issue.Mr. Smith also asked the justices to make their decision quickly.“The United States recognizes that this is an extraordinary request,” he told the Supreme Court in a petition filed on Monday.But there was a reason it was needed.“This is an extraordinary case,” he wrote.Here is a look at the intersecting legal and political issues surrounding the special counsel’s move.What does Mr. Smith want the Supreme Court to do?He made two separate requests.First, he asked the justices to consider a legal issue they have never looked at before: whether the Constitution confers absolute immunity on a former president against a federal prosecution for crimes he committed while in office.Mr. Trump put that argument at the center of his initial motion to dismiss the election case, which he filed in October in Federal District Court in Washington. He contended that because the charges were based on official actions he took while in the White House, the indictment in its entirety had to be thrown out.Judge Tanya S. Chutkan, who is handling the case, disagreed and rejected the motion two weeks ago. Mr. Trump’s lawyers challenged her decision in the normal way in front of a federal appeals court in Washington and also asked her to freeze the case while the appeal was being heard.Mr. Smith asked the Supreme Court to step in front of an appeals court to rule on former President Donald J. Trump’s claims of immunity.Haiyun Jiang for The New York TimesWhile the lawyers obviously hoped to win the appeal, they also had another goal: to drag out the process for as long as possible and postpone a trial on the election interference charges.It was that delay strategy that appeared to underlie Mr. Smith’s second request to the Supreme Court. He asked the justices not only to rule on the immunity issue before the lower appeals court did, but also to do so on an expedited basis.Mr. Smith told the justices that an ordinary, even a relatively fast, appeal could take too much time. And he expressed concern in particular about keeping the trial, now set to go before a jury on March 4, more or less on schedule.What could happen if the trial is delayed?It depends on whom you ask and how long the trial is postponed.A significant delay could push the trial into summer or fall — the heart of the 2024 campaign season. That could cause problems for Mr. Trump because he would be obliged to attend the trial in Washington every weekday for two or three months when he could be holding rallies or meeting voters.Mr. Trump would likely respond to such a situation by bringing his campaign to the steps of the federal courthouse. He would almost certainly hold daily news conferences in front of the television cameras that would await his exit from the courtroom and use them to deliver his political talking points and attack the legal proceeding. He has employed a similar strategy during the civil fraud trial in New York in which he is accused of inflating his company’s net worth.There could also be serious consequences, however, if the trial is pushed off until after the election.If that happens and Mr. Trump wins the race, he would suddenly have the power to order the charges to be dropped. Moreover, millions of voters would never get to hear the evidence that Mr. Smith’s team collected about Mr. Trump’s efforts to subvert the last election before making a decision about whether to elect him again.What do we know about whether the Supreme Court will take the case on an expedited basis?It would require only four of the nine justices to come together for Mr. Smith’s request to be granted. Shortly after Mr. Smith filed his petition, the court issued an order telling Mr. Trump’s legal team to respond with their opinions on the issue by Dec. 20. While the schedule the justices set gave no indication of whether they might ultimately take the case, it did seem to suggest that the court was not inclined to drag its feet in reaching a decision.A significant delay in the case could plunge the trial into the heart of Mr. Trump’s 2024 campaign.Hilary Swift for The New York TimesHistorically speaking, the Supreme Court has only rarely stepped in front of lower appeals courts by using the procedure known as “certiorari before judgment.” Before 2019, the court had not used the provision for 15 years, according to statistics compiled by Stephen Vladeck, a law professor at the University of Texas. But as of late last year, the court had used it 19 times since.The procedure has been used in cases involving national crises, like President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor during a criminal investigation.Mr. Smith urged the court to use it in Mr. Trump’s criminal case as well, saying that the proceeding involved “issues of exceptional national importance.”How sympathetic has this Supreme Court been to Trump in such cases?While the court’s current majority has voted in favor of a number of staunchly conservative policies, from striking down abortion rights to reversing affirmative action, it has shown less of an appetite for supporting Mr. Trump’s attempts to monkey with the democratic process.Just months before Mr. Trump appointed his third Supreme Court justice, the court ruled by a 7-to-2 vote in 2020 that he had no absolute right to block the release of his financial records from investigators in a criminal inquiry.“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John G. Roberts Jr. wrote for the majority.That same year, in a brief unsigned order, the court rejected a lawsuit filed by the state of Texas seeking to throw out the election results in four battleground states that Mr. Trump had lost. It also declined requests to review suits filed by pro-Trump lawyers claiming that voting machines across the country had been hacked by a cabal of foreign actors to flip votes away from Mr. Trump.Last year, the Supreme Court refused a request from Mr. Trump to block the release of White House records concerning the Jan. 6 attack on the Capitol, effectively rejecting his claims of executive privilege.The court’s unsigned order upheld the original decision made in the case by none other than Judge Chutkan. And she had scathing words for Mr. Trump in her initial decision rejecting his claims of executive privilege.“Presidents are not kings,” she wrote, “and plaintiff is not president.”What could happen next?If the Supreme Court takes the case and agrees with Mr. Trump’s immunity claims, then the indictment would be tossed out and there would be no trial on the election interference charges. But if the court hears the case and quickly sides with Mr. Smith, a trial would be held, likely before the election.On the other hand, if the justices decline to hear the case at this stage, then it would go back to the U.S. Court of Appeals for the District of Columbia Circuit. But the Supreme Court could eventually come back into the picture and consider challenges to the decision of the appeals court. More