“There comes a point,” Justice Felix Frankfurter wrote in 1949, “where this court should not be ignorant as judges of what we know as men.”
The Supreme Court’s decision on Wednesday to schedule arguments in April to consider former President Donald J. Trump’s argument that he is immune from prosecution seemed colored by the lack of that perspective. It set a plausibly expedited schedule for considering a question of significant constitutional moment, one that would ordinarily be resolved by the justices in a definitive opinion.
But the court’s order appeared to ignore the enormous elephant in the room: the looming election that makes Mr. Trump’s trial on charges that he had plotted to overturn the 2020 election a race against time. The schedule the court set could make it hard, if not impossible, to complete Mr. Trump’s trial before the 2024 election. Should Mr. Trump win at the polls, there is every reason to think the prosecution would be scuttled.
The justices were not alone in ignoring the elephant. Jack Smith, the special counsel overseeing the prosecution, never cited the November election as a reason for the court to move quickly.
Instead, he talked around the beast. “The public importance of the issues, the imminence of the scheduled trial date and the need for a prompt and final resolution of respondent’s immunity claims,” he wrote in December, “counsel in favor of this court’s expedited review at this time.”
People who had been rooting for the Supreme Court to reject Mr. Trump’s appeal entirely, whether by denying review of or summarily affirming an appeals court ruling against Mr. Trump, misunderstand the court’s conception of its own power and importance. The justices seem to think that decisions of such constitutional significance, as in broadly similar cases concerning claims of immunity from Presidents Richard M. Nixon and Bill Clinton, ought to be settled by the nation’s highest court.
