How the Supreme Court could rule on Trump’s presidential run
The Supreme Court, beset by ethics scandals, a dip in public trust and questions about its legitimacy, may soon face a case as consequential and painful as Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush.
Until ten days ago, the judges had a relatively routine hearing. Then the Colorado Supreme Court declared that former President Donald J. Trump was ineligible for office because he was involved in an insurrection. On Thursday, a Maine election official relied on that court’s reasoning followed suit.
An appeal against the Colorado ruling has already reached the justices, and they will likely feel compelled to weigh in. But they will act in the shadow of two competing political realities.
They will be reluctant to take away voters’ power to judge Mr. Trump’s behavior, especially given the certain backlash that would entail. Yet they will also be wary of giving Trump the electoral boost of an unconditional victory at the nation’s highest court.
Chief Justice John G. Roberts Jr. will undoubtedly seek consensus, or at least try to avoid a partisan split of the six Republican appointees against the three Democratic ones.
He may want to explore the many avenues the court could take to keep Mr. Trump on state ballots, without addressing whether he had engaged in insurrection or even assuming that he had done.
Among them: The justices could decide that congressional action is needed before courts can intervene, that the constitutional provision in question does not apply to the presidency or that Mr. Trump’s statements were protected by the First Amendment.
“I expect the court will use one of the many routes available to prevent Trump from being an insurrectionist who can therefore no longer be president,” said Nicholas Stephanopoulos, a Harvard law professor.
Such an outcome would certainly be a painful loss for Trump’s opponents, who say the case against him is airtight. But the Supreme Court may be attracted to what it would present as a modest ruling that would allow Trump to remain on the ballot.
“This is a charged political issue,” said Derek Muller, a law professor at the University of Notre Dame. “I think the court will make an effort to coalesce around a consensus position for a narrow, unanimous opinion. That likely means uniting around a position that keeps Trump on the ballot.”
If there is consensus among legal experts, it is that the Supreme Court must act.
“For the sake of the country, we must resolve this matter as quickly as possible,” said Richard L. Hasen, a law professor at the University of California, Los Angeles. “Republican primary voters deserve to know whether the candidate they are considering supporting is eligible to run. Otherwise, they will waste their votes on an ineligible candidate and increase the risk of the party nominating an ineligible candidate in the general election.”
Mr. Trump was disqualified in Colorado and Maine under Section 3 of the 14th Amendment, which bars officials who take an oath to support the Constitution from holding office if they subsequently engage in insurrection.
Professor Stephanopoulos said these decisions were legally sound. But he added that he was “very skeptical” that the Supreme Court, which has a six-justice conservative supermajority, would agree.
“I think Roberts very much doesn’t want the court to interfere with a presidential election, especially one based on a new legal theory that doesn’t have longstanding support from conservative judges and academics,” Professor Stephanopoulos said. “I also doubt that the Court’s conservative justices want to start a civil war within the Republican Party by disqualifying the candidate that most Republican voters support.”
Tara Leigh Grove, a law professor at the University of Texas, said the court has no options that will increase its prestige.
“While many members of the public would naturally embrace a decision affirming the Colorado Supreme Court,” she said, “others would recoil from the decision. “I don’t think there is any way the Supreme Court can issue a decision on this issue that will clearly increase its legitimacy among the general public.”
She suggested a general rule of thumb: “Any time the Supreme Court considers a truly extraordinary constitutional case, it must confront at least two issues: first, what is the better answer to the legal question; and second, how confident are the judges in that answer?’
“When it comes to cases that will have a huge impact on society,” she said, “one might assume that the level of confidence should be particularly high.”
In her ruling Thursday, Secretary of State Shenna Bellows of Maine wrote that the facts about Mr. Trump’s conduct were “not seriously in dispute.”
“The record shows that over the course of several months, culminating on January 6, 2021, Mr. Trump used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to support the certification of the 2020 elections and prevent the elections. peaceful transfer of power,” she wrote, adding: “The weight of the evidence makes clear that Mr. Trump was aware of the tinder laid by his months-long effort to delegitimize democratic elections, and then chose to strike a match to light.’
Like the Colorado Supreme Court, Ms. Bellows put her ruling on hold while the appeals proceeded. That means the U.S. Supreme Court has some breathing room.
The Colorado case is already before the judges in the form of a request for review filed by the state’s Republican Party, which urged the court to resolve the case before March 5, when many states, including Colorado and Maine, hold primaries. Otherwise, they said, voters “will face great uncertainty and the electoral process will be irrevocably damaged.”
The six voters who prevailed in the Colorado case the judges asked to act even faster, culminating in a decision on the merits on February 11.
Professor Hasen said the ruling from Maine increases the need for a quick resolution.
“The fact that a second state has ruled, at least for now, that Trump is ineligible to vote puts significant pressure on the Supreme Court to intervene in the case and say something about how Section 3 should be applied to Trump” , he said. “The prosecutors filing these lawsuits are ruthless, and they will continue to try to have Trump removed.”
Agreeing to hear the case is one thing. Solving it is something else. As the Colorado Supreme Court has recognized, there are at least eight separate issues in the case, and voters challenging Mr. Trump’s eligibility must prevail on all of them.
“For Trump to win, he only needs to win on one point,” said Professor Müller. “There are many options available to the court.”
On the other hand, leading conservative law professors who have examined the original meaning of Section 3, which was passed after the Civil War, have recently concluded that it clearly applies to Mr. to rule out. Such originalist arguments usually resonate with the most conservative members of the court.
But other considerations may prevail.
“No matter how much the court wants to avoid politics in its decisions, it is inevitable,” Professor Müller said. “The best we can do at this point is to try to reach consensus to avoid the appearance of bias.”