The Supreme Court’s denial of President Trump’s emergency appeal to halt his sentencing in the hush money case suggests that the Nine’s conservative majority is anything but united on the crucial question of presidential immunity.

It appears that Judge Juan Merchan’s decision not to send Trump to prison proved decisive. The order took note of the jurists “intent to impose a sentence of ‘unconditional discharge’  after a brief virtual hearing.” The roots of the court’s splintering though, could stretch back to the landmark immunity decision handed down over the summer in Trump v. United States. That case held that official presidential acts are immune.

The high court did not reach the merits of District Attorney Alvin Bragg’s prosecution, which secured 34 guilty verdicts against the president-elect. The high court, though, ruled by the slimmest of margins — five to four — that Judge Merchan could sentence the president-elect on Friday. Chief Justice Roberts and Justice Amy Coney Barrett joined the liberal justices in declining to issue a stay.

The president-elect, in his bid to avoid sentencing before he takes office — that would cement him as a convicted felon — argued that president-elects are entitled to the same immunity granted to sitting presidents. In Trump, though, both Chief Justice Roberts and Justice Barrett took pains to insist that presidential immunity, while expansive, is not absolute. This order, brief as it may be, could mark the outer limit of the court’s majority’s understanding of immunity’s circumference. The chief justice, in Trump, wrote that “The President is not above the law.” 

Both Mr. Bragg and Special Counsel Jack Smith telegraphed that they believed that their cases could survive the immunity delivered in Trump. Mr. Bragg maintained that the hush money payments at the core of his case were private and not immune. Mr. Smith’s prosecutions only came to an end once Trump won a second term, which will deliver him the immunity afforded to sitting presidents.    

Justice Barrett, whom President Trump nominated to the bench in his first term, concurred with the Chief’s majority opinion, but with a caveat. She determined that Trump’s efforts to convene alternate electors were “not entitled to protection” and that even actions protected by immunity could be used as evidence. Justice Barrett also dissented from the majority’s limitation of the use of a statute native to financial fraud for January 6 rioters.      

Five justices would have been required to halt the proceedings in New York. A majority of the court instead reckoned that the sentencing “will impose on the President-Elect’s responsibilities” a burden that is “relatively unsubstantial.” They also reasoned that  the alleged evidentiary violation” at Trump’s “state trial can be addressed in the ordinary course on appeal.”

President-elect Trump will now presumably pursue that appellate course from the Oval Office — something that has never been done before. His attorneys had argued that sentencing the 45th president during his presidential transition would inflict “grave injustice and harm to the institution of the Presidency and the operations of the federal government.”

The appeal was docketed with Justice Sonia Sotomayor, the Bronx-born justice who is the port of call on the court for appeals that emanate from New York. The court’s opinion was unsigned, and the four dissenters did not elaborate on their opposition. Judge Merchan has called Trump’s actions tantamount to a “premeditated and continuous deception by the leader of the free world.”

Trump on Thursday evening at Mar-a-Lago, reflecting on the high court’s decision, vowed that “we’re going to appeal anyway, just psychologically, because frankly it’s a disgrace.” He added that “I read it and I thought it was a fair decision, actually, so I’ll do my little thing tomorrow.” Trump has signaled that he intends to attend his hearing at New York virtually, an arrangement permitted by Judge Merchan.