WASHINGTON — Fifty years ago, three of the justices Richard Nixon appointed to the Supreme Court joined in an 8-0 decision in the Watergate tapes case that effectively ended his presidency, ruling only 16 days after hearing the case. Nixon resigned from office just over two weeks later.
Now, three justices named by then-President Donald Trump sit on the court as it weighs whether and when he must stand trial on criminal charges that he conspired to overturn his 2020 election loss, a case they heard seven weeks ago. Two others also named by Republican presidents have brushed off criticism that they should step aside from the case over questions about their impartiality.
The outcome of the case, as well as a separate dispute over criminal charges faced by Trump and the hundreds of his supporters who violently attacked the Capitol on Jan. 6, 2021, could further damage the court’s already diminished credibility if the justices are divided by ideology. Or it might provide a needed boost in the unlikely event conservatives and liberals can come to a consensus.
Any court majority favorable to Trump is highly likely to include at least two of his three nominees, Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh, as well as conservative Justices Samuel Alito and Clarence Thomas.
Alito has rejected demands that he recuse himself from the case after flags similar to those carried by Jan. 6 rioters flew over his homes in Virginia and New Jersey. Thomas has ignored calls to step aside because of the role his wife, Ginni, played in supporting efforts to overturn Trump’s loss to Democrat Joe Biden in 2020.
The timing suggests there is no consensus on a court with six conservative and three liberal justices. Trump, the presumptive Republican presidential nominee, already has gotten much of what he wants because the court’s decision to step into the case halted preparations for a trial scheduled to begin in March. Its failure to resolve the issue has made it less likely that he will stand trial before the November election.
The court’s legitimacy already has taken a hit, said Elizabeth Wydra, president of the progressive Constitutional Accountability Center.
“The Court has already delayed issuing a decision for far too long and risks the appearance that it’s playing politics with the timing of its decisions — giving Trump a win through delay, even if he ultimately loses in substance,” Wydra said.
The dispute over the Watergate tapes — Oval Office recordings of Nixon’s conversations with his aides, including one discussing the coverup of the Watergate investigation — has close parallels to the immunity fight.
Both involved the power of the president and his accountability in the judicial system, with criminal trials pending. In 1974, it was Nixon’s aides who were scheduled to stand trial, and special prosecutor Leon Jaworski subpoenaed the tapes to use in his case.
Nixon resisted, asserting that he had a constitutional privilege as a president to maintain the confidentiality of his conversations with top aides.
The justices heard arguments on July 8 and issued their opinion a little over two weeks later.
Then-Chief Justice Warren Burger, who was named to the court by Nixon, acknowledged that presidents must be able to rely on the unvarnished views of their aides.
“However, neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” Burger wrote in ordering that the tapes be turned over.
A fourth appointee of Nixon’s, William Rehnquist, didn’t take part in the case because of his previous work in the Justice Department under Nixon.
Special counsel Jack Smith suggested in court papers that the current court could act with the same sense of purpose and speed it showed in the Watergate era. The court has not acted with unusual haste.
Other examples of rapid turnarounds include equally momentous cases, including the 2000 presidential showdown in Bush v. Gore and the Pentagon Papers case in 1971.
Even this term, in a separate case involving Trump, the justices handed down their decision less than a month after hearing arguments over whether states could kick Trump off the ballot in 2024 because of his actions following the 2020 election. The court unanimously said they could not.
The immunity case is among a dozen or more major decisions that should be handed down within the next few weeks. The Jan. 6 case also awaits resolution along with cases about abortion, guns, social media, regulatory power and the environment.
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