The Supreme Court remains the linchpin of Trumpworld’s push for power

It is not the case that the justices nominated under Trump are beholden to Trump, certainly. It is the case that they were put forward by the most right-wing president in recent history specifically because he believed they reflected some part of his politics. Once on the bench, they joined two other justices — Samuel Alito and Clarence Thomas — whose right-wing bona fides were already well established. Add in Chief Justice John G. Roberts Jr., a moderate only in comparison to his colleagues, and the court had a 2-to-1 tilt toward the right and toward Trump.

Trump’s assessment of the utility of the court for his ambitions was often overt. His nomination of Amy Coney Barrett (the justice who arrived right before the 2020 election) came as he argued that a full bench was needed because of “this scam that the Democrats are pulling” — referring to the dishonest idea he was promoting that the election would be somehow stolen. That issue, he said, “will be before the United States Supreme Court,” and an eight-justice bench risked a tied decision.

Then, as he feared, he lost the election. He and his allies worked to keep him in office despite that loss, trying to stop the counting of ballots in states Joe Biden won and then to block the certification of election results. Ultimately, their effort focused on invalid slates of electors submitted from states he lost and the idea that, if the dominoes fell in the right way, the Supreme Court would help ensure that he won the electoral vote.

On Tuesday, the office of Wisconsin's attorney general filed criminal charges targeting three Trump allies for their efforts to undercut that state's legitimate electors. The criminal complaint alleges that Mike Roman, Kenneth Chesebro and James Troupis engaged in a criminal conspiracy to that end.

Roman and Chesebro had been indicted on similar charges previously. Four states have indicted Trump or people close to him for efforts to overturn the 2020 election. Special counsel Jack Smith also obtained an indictment against Trump in D.C. federal court. Trump, Chesebro and others are also identified or identifiable as unindicted co-conspirators in several cases.

The alleged plan in Wisconsin is detailed in the complaint. It was interwoven with and at points dependent on the Supreme Court.

On Jan. 6, 2021, before the counting of electors was interrupted by the attack on the U.S. Capitol, there was an alleged attempt to ensure that Vice President Mike Pence had the invalid slate of electors to consider. This was allegedly discussed between the three men charged in the complaint. Troupis offered that the next step was to “talk about SCOTUS strategy going forward.”

Central to this plan was John Eastman, who wrote a memo (mentioned in the Wisconsin complaint) outlining the strategy. It culminated with an acknowledgment that Democrats would attempt to get the Supreme Court to intervene, though he acknowledged that the outcome wasn't likely to be positive.

He and Chesebro had also pushed to get something in front of the court and any sympathetic justices — four of them, as Eastman reportedly suggested to Chesebro. Eastman also reportedly suggested that the threat of chaos accompanying the electoral vote-counting might spur the court to move more quickly.

Who those four justices might have been wasn’t identified in news reporting or uncovered by the House select committee investigating the Capitol riot. (Eastman repeatedly invoked his Fifth Amendment rights when subpoenaed by the committee.) But we can probably guess at least one: Thomas, who was identified in contemporaneous emails as sympathetic.

After Trump was convicted last week on 34 felony counts at his trial in Manhattan, Eastman again broached the idea that the Supreme Court might bail Trump out during a conversation with a right-wing podcaster. The Trump team, he said, needed to file a writ with the court to block sentencing on that verdict.

“It needs to be done, given these extraordinary circumstances,” he warned, “before people start seeking remedies on their own” — an apparent prediction of violence.

“One hopes this Supreme Court will understand” the purported flaws in the case, Eastman said later, “and take it up. And understand the risk of not taking it up.”

The idea that the court could undo Trump’s conviction is something that Trump himself has recently embraced. In a post at Truth Social, the social media platform he owns, Trump wrote that the “United States Supreme Court MUST DECIDE” how that legal fight concludes. His predicate for this mandate was like Eastman’s, a slurry of false and overstated claims about perceived unfairness and bias.

Trump wasn’t alone in this call. House Speaker Mike Johnson (R-La.) suggested in a recent Fox News interview that the court should step in.

“I do believe the Supreme Court should step in,” he said, adding that he “know[s] many of them personally.” He clarified in a subsequent interview on Sunday that he hadn't had specific conversations about the case with any Supreme Court justices.

That impulse, though, is very much the point. It is fair to consider the Supreme Court the ultimate arbiter on most questions of law, given that is the court’s role. But there is an important distinction between the court’s role as a check on the legislative and executive branches and seeing it as a path around other forms of governmental power. There is a distinction, too, between a court that evaluates questions of the law that have an effect on power and a court seeking to have an effect on power by allowing that to determine how it evaluates questions.

Trump’s approach to the presidency and the federal government is that the constraints of elections or norms or checks and balances are tedious inconveniences. The Supreme Court, an unelected body with little accountability and a conservative majority that he helped shape, is a way around all of that, as his and his allies’ approach to the court makes clear.

The Supreme Court is at the tail end of its term. Among the unresolved issues for which we expect a decision soon: whether Trump, as president, had broad immunity for his actions. That decision could, in a flash, kneecap the effort to hold Trump accountable for his efforts to retain power after losing in 2020.