No further action has come. Nor has the court acted on a separate request from the Trump campaign, pending for a week, to intervene in the case.
There is no deadline for the court to answer those questions, so the justices appear to be taking their time during the president’s battle to dispute his election defeat — and maybe even be allowing the clock to run out.
“I’m sure they do not relish the thought of Bush v. Gore II in any way, shape or form,” said Michael C. Dorf, a Cornell law professor who anchors a popular legal blog. He was referring to the court’s 5-to-4 decision in 2000 that essentially ended a stalemate over Florida’s presidential vote and cleared the way for George W. Bush to assume office.
Three of the court’s current members — Chief Justice John G. Roberts Jr. and Trump-nominated Justices Brett M. Kavanaugh and Amy Coney Barrett — worked on Bush’s behalf during that time, although Barrett was a young associate at a law firm hired by the campaign.
But she is in the most tenuous position, facing calls to recuse herself from any election-related litigation because of the circumstances of her nomination — just before the election and after Trump had said nine justices were needed to hear post-election disputes.
As it stands now, Dorf noted, it would be easy for the high court to take a pass. Trump’s lawyers have been largely unsuccessful in the relatively small-bore cases they have filed in the battleground states where projections show the president has lost to Democrat Joe Biden.
The court could be forced into action only if a lower court agreed to an injunction that put the results of the election in question, Dorf said.
In the Pennsylvania case already at the high court, the number of disputed ballots at stake is too small to affect the result — state officials say about 10,000 mail-in ballots were received in the three days after Election Day, which is the period in dispute. (A state court has ruled that some of the votes cannot be counted anyway, and Biden has a lead of more than 60,000 votes.)
That case does raise an important issue that divided the Supreme Court before the election, about whether the power of the state legislature to set the terms of the election is subject to being overruled by state and federal courts.
But Dorf said it is likely the court would want to settle that issue in advance of an election, not afterward. And if the court takes no action to expedite the Pennsylvania case, it may not come before the court until next year.
On whether the Trump campaign may intervene, the Pennsylvania Democratic Party said it had no objections. But it told the court there was no obligation to decide the question now and no reason to take the case.
Separately, two cases have followed the court’s decision this summer that the president is not immune while in office to answering subpoenas from prosecutors or congressional committees.
However, the justices said that Trump was entitled to argue in lower courts that the requests for records from banks and Trump’s longtime accounting firm Mazars USA were too sweeping, or made to harass or embarrass the president.
The U.S. Court of Appeals for the 2nd Circuit said that was not the case in the request by Manhattan District Attorney Cyrus R. Vance Jr. Vance said a grand jury is investigating whether Trump and his companies violated state laws.
Trump’s lawyers have asked the high court to at least temporarily put the lower court rulings on hold, though, until it could decide for itself whether “his confidential financial records are disclosed to the grand jury and potentially the public.”
Meanwhile, the U.S. Court of Appeals for the District of Columbia Circuit could rule at any time on the House of Representatives’ subpoena for access to the same set of tax and financial records held by Mazars. The Supreme Court in its July ruling upheld Congress’s investigative powers but said subpoenas directed at the president can be “no broader than reasonably necessary” to serve Congress’s purpose.
The D.C. Circuit heard arguments in Trump v. Mazars in October before a three-judge panel that previously sided with the House.
Those who have been involved with the litigation note that time is running out in both cases, as a new Congress will be seated in January just before Trump is scheduled to leave the White House.
“I highly doubt Chief Justice Roberts is eager for his court to get involved with Trump’s meritless lawsuits surrounding the election, though they obviously will if necessary,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center.
With regard to the subpoena cases, “these are likely not the last subpoenas Donald Trump will face with respect to his financial records,” Wydra said. “But if the courts — the Supreme Court in Vance and the D.C. Circuit in Mazars — continue to take their time issuing any rulings in the cases, then specific disputes related to his status as president will become moot.”
Ann E. Marimow contributed to this report.