In my various essays following the conclusion of the latest SCOTUS term earlier this summer, I emphasized a number of points to push back on the narrative that the Roberts Court was either delivering a mixed set of results to President Trump or, even less persuasively, that it was outright rebuking him. I won't rehash all of my reasons, which are summarized here. Instead, I'll emphasize the framing effect of the extreme positions the Trump administration takes.
But first, consider a story. A fool of a father needs to divide a cookie between his two children, Dawn and Don. Dawn says: "I want half the cookie. That's only fair." Don says: "I want the whole cookie." The father says: "Let's compromise. Don will get 3/4 of the cookie and Dawn will get 1/4." In case it's not obvious, the Trump administration is Don in this parable.
In the cookie story, it's obvious that the father is acting unfairly to Dawn, but in many circumstances in real life it's not so obvious. Thus, psychologists and self-styled negotiation experts point to the importance of anchoring and related cognitive biases. A big initial ask makes acquiescence to a smaller but still large ask seem more palatable.
In the last Supreme Court Term, Trump's assertion of essentially unlimited tariff authority under the IEEPA and the ability to revisit a landmark 19th century decision construing the 14th Amendment's Citizenship Clause are the equivalent of asking for the whole cookie. Before Trump came along, neither was a remotely plausible view of the law. And yet, in the Learning Resources case, he got three votes (Thomas, Alito, and Kavanaugh) for his brash assertion of tariff authority. In Trump v. Barbara, he got three votes for the legality of his position (Thomas, Alito, and Gorsuch) and another vote (Kavanaugh) for its constitutionality if he could get Congress to go along. He got uncomfortably close to a whole cookie.
The latest effort by Trump to shoot the moon was his petition for rehearing after the Supreme Court denied certiorari in the E. Jean Carroll civil case. As a reminder, that's the litigation in which a jury found that Trump defamed Carroll when he denied having sexually assaulted her. Trump's original cert petition purported to raise general legal questions regarding the federal rules of evidence. To wit:
(1) Whether Federal Rule of Evidence 415 overrides Rule 403’s requirement to balance the probative value of temporally remote propensity evidence against its prejudicial effect before such evidence can be admitted?; (2) Whether Federal Rule of Evidence 413(d) authorizes the admission of temporally remote propensity evidence that the defendant committed the “crime” of “sexual assault” when the alleged prior act did not constitute a crime or a sexual assault?; and (3) Whether Federal Rule of Evidence 404(b)(2) permits the admission of “modus operandi” or “corroboration” evidence of prior “bad acts” without establishing a non-propensity purpose of the evidence, such as identity, absence of mistake, or another enumerated exception in Rule 404(b)(2)?
Did you follow that? That's okay. You weren't supposed to. The real point of the cert petition was to assert: Witch hunt. Fake news. I appointed three of you. You owe me!
We know that there were no listed dissents from the denial of certiorari in the Carroll case. We don't know that there were no dissents. There could have been as many as three. Indeed, there is reason to think that at least one Justice was seriously considering casting a vote to grant cert and may have been working on colleagues because of how many times the Court delayed deciding whether to grant cert. The original cert petition was filed last November. The plaintiff's opposition to cert was filed in mid-January of this year. Trump filed his reply at the end of January. The case was then re-listed fifteen times before the Court finally denied cert at the end of June (just in time to get out of town).
Trump filed his petition for rehearing on July 6. His main argument for rehearing was that he was imminently filing a cert petition in a related case and the Court should consider them both together. But this was a ridiculous argument because Trump's lawyers had already alerted the Court to the related impending cert petition in early June, nearly two months before the Court denied cert. Petitions for rehearing are almost never granted and certainly not when they point to nothing new.
Thus, the news that the Court rejected Trump's rehearing petition on Monday of this week should not have been news at all. To the credit of the journalists who wrote stories about that rejection, most of the ones I came across noted that Trump's rehearing petition was always a long shot. In other words, they did not frame the story as the Justices going out of their way to reject a position taken by Trump.
Nonetheless, the Court’s rejection of Trump’s frivolous rehearing petition will fool a lot of people. By rejecting a Trump case--even one as clear-cut as the Carroll rehearing petition--the Court's conservatives give themselves breathing room with the low-information public to rule in Trump's favor in other cases that he also ought to but won't lose. Those could include his thus-far successful efforts to evade lower court rulings that his East Wing Destruction ballroom construction project is illegal. With each absolutely bonkers request from Trump that the Court denies, it becomes easier for it to rule in his favor based on his other not-quite-as-bonkers-but-still-very-bonkers positions.
It's almost as if the father in our allegory knows that a 3/4--1/4 split is grossly unfair but wants to favor his favorite child.