Justice Delayed, Justice Denied

Hello, it’s the weekend. This is The Weekender ☕

Next week will mark one month since the D.C. Circuit held oral arguments in Trump’s D.C. Jan. 6 case. Until that’s concluded, the D.C. case — and its trial date — will remain frozen.

Every day that the court does not rule is another day of delay for the trial. Once the D.C. Circuit issues its ruling on Trump’s claim that he is immune from prosecution for acts he undertook while President, there may be more delay before it goes back on track to trial at the district court level. Depending on how the D.C. Circuit rules, Trump could ask the entire D.C. Circuit for a ruling; he could also appeal to the Supreme Court.

Depending on the breaks, that could add up to months more of delay.

I’ve been covering the legal matters around Trump for years now. In the Mueller investigation, in the civil cases fighting congressional subpoenas, in the Manhattan grand jury investigation, and in the post-2020 federal criminal cases, Trump has used delay as a centerpiece of his defense. The urgency ebbs away, people lose interest, succumb to pressure. It’s worked.

Jack Smith and some of the judges who have encountered the cases he’s brought have responded with urgency. Tanya Chutkan, the district court judge in the Jan. 6 case, certainly did; the same does not go for the entire three-judge panel on the D.C. Circuit Court of Appeals which is mulling Trump’s case. Judge Karen Henderson, a George H.W. Bush appointee, was the sole judge on the panel to oppose expediting the case.

For the rarified world of appellate law, it’s a little odd for there to be intense public scrutiny on a panel, and particularly on the thorny question of whether one judge can hold up a decision even if the other two are ready to go. I delved into the question of delay back in October 2022, looking at a case before the 11th Circuit Court of Appeals which took seven years before the panel ruled.

Trump doesn’t need extreme delay from the court. What he needs is a lack of urgency — just enough delay to get him past November, not enough to appear improper. It’s a narrow zone, and one which we appear to be entering.

The latest existential threat to the Voting Rights Act comes courtesy of the 8th Circuit Court of Appeals with its lonely one — one — active judge appointed by a Democratic president. The appellate court decided Tuesday not to take up a case en banc after its panel ruled that individuals could not sue under Section 2 of the VRA, upending decades of precedent. 
 

The case will likely head to the Supreme Court, where the right-wing judges are clearly betting on the conservative supermajority’s willingness to decimate the best remaining path to bringing racial gerrymandering cases in federal court. Nearly all vote dilution cases are brought by individuals (backed by civil rights and good government groups). If this decision stands, only the U.S. attorney general will be able to bring them. Imagine a hypothetical President Donald Trump’s attorney general and his enthusiasm for enforcing fair districts for minority voters…

Something I wonder about a lot is if there is, for lack of a better term, a Weirdness Threshold, beyond which a political movement just dies. It seems like there is but it moves a lot. It used to be that just one erratic yell could do the job. There’s a whole Wikipedia page dedicated to the Dean Scream. Taylor Swift seems to be provoking a lot of right wing operatives into testing the Weirdness Threshold. And I wonder what, if anything, it means, for the weirdness of the online right to be exposed to a mainstream audience.

For much of this NFL season, there was growing din of football fans complaining about the “attention” the league and broadcasters gave Swift while watching her boyfriend, Travis Kelce, play for the Kansas City Chiefs. This past week, however, it got super weird. Renowned thinkers such as Vivek Ramaswamy and Charlie Kirk wondered if she was some kind of psy-op for the Pentagon. Rolling Stone reported Trump allies were planning a “Holy War” against Swift, whom 45 thinks is maybe more popular than he is, a mortal sin.

This foolishness met resistance from GOP senators all the way to Colin Cowherd. All the while I was wondering if maybe Swift had unintentionally tricked a lot of the online right into revealing just how weird they are. Like it’s weird — there’s just no other way to put it — to see the biggest pop star in the world dating a really popular football player and to immediately posit that this might be an operation by the “deep state” FBI or an elaborate scheme to get Joe Biden elected. It’s just weird. And then you have guys like Ross Douthat who, in their minds, are distancing themselves from the super weird by saying this:

So you think the normal thing to do is see celebrities and start thinking about birth rates? 

I could be wrong, but I don’t think most people ever think about these things. They think it’s weird shit. They also think it’s kinda weak and loserish. It may be the case that the online right is immune to being too weird, but it also may be the case that Taylor Swift helps inadvertently highlight just how crazy things are getting over there to people who otherwise wouldn’t believe it was possible.

• Right-wing activists have returned to the well of U.S. District Judge Matthew Kacsmaryk, this time to engineer the demise of Planned Parenthood. 
• Fulton County District Attorney Fani Willis on Friday for the first time directly addressed allegations that she had an improper relationship with a top prosecutor in her RICO case against Trump and more than a dozen other defendants. In a Friday court filing, she confirmed that she began a “personal relationship” with prosecutor Nathan Wade beginning in 2022, but denied that that relationship tainted her case.
• In battles over protecting the safety and rights of transgender kids, we’re confronted with the politics of questions that shouldn’t be political.
• As some of their far-right colleagues salivate over Texas Gov. Greg Abbott’s performative legal and political standoff with federal border agents, vulnerable House Republicans are toeing an all-too-familiar line between criticizing their hardliner colleagues’ rhetoric and still demonizing the Biden administration.