A ruling for Trump on eligibility could derail his bid for immunity
Chief Justice John G. Roberts Jr. and his colleagues appeared ready Thursday to rebuild the court's reputation by presenting itself as unified and apolitical.
He's had a bumpy ride lately, with the leak of the decision overturning Roe v. Wade, an inconclusive investigation into that violation, a lonely unanimity in the decision itself, and ethical scandals followed by a toothless code that meant was to tackle them.
All of this has contributed to a decline in the Supreme Court's approval ratings, as large segments of the public increasingly view the Supreme Court as influenced by politics rather than committed to neutral principles and the rule of law.
Based on the justices' questions in Thursday's arguments about former President Donald J. Trump's fitness to hold office again, they will rule that Mr. Trump should be on the primary ballot in Colorado and on other ballots across the country can stay – and with a crooked voice. If not unanimous, vote.
But if the chief justice's project of impartiality is to prevail, the court will have to rule against Mr. Trump in a separate case heading to court in which he claims absolute immunity from prosecution for his conduct leading up to and after . January 6, 2021.
Richard L. Hasen, professor of law at the University of California, Los Angeles, wrote in Slate that the contours of a “great deal” were coming into view.
“The Supreme Court is unanimous, or nearly so, in holding that Colorado does not have the power to remove Donald Trump from the ballot, but in a separate case it is rejecting his immunity argument and forcing Trump to stand trial this spring or summer for undermining the federal elections. charges,” he wrote.
Legal experts said the sheer volume of arguments in Thursday's case, an appeal of a Colorado Supreme Court ruling that barred Mr. Trump from the state's primary ballot, made a ruling in his favor by the justices likely.
“He seems likely to prevail, if only because the stack of reasons offered something for virtually every justice,” said Cornell law professor Michael Dorf, who added that Justice Sonia Sotomayor may be an exception.
“The challenge for Chief Justice Roberts and whoever he assigns the opinion to will be finding a rationale that can garner five or more votes,” he said. “In recent cases, Roberts has sometimes struggled to keep the five judges to his right in check. Here there will probably be something closer to consensus.”
Tara Leigh Grove, a law professor at the University of Texas, said the case over Mr. Trump's eligibility and the one over his claim of absolute immunity could be practically linked.
“History tells us that the Supreme Court does a better job with the public — in other words, it is seen as more legitimate — when it does not repeatedly rule only for 'one side' of the political aisle,” she said. “So I expect that the judges will welcome some sort of split decision in these cases. That is, the court could decide that President Trump remains on the ballot and yet has no immunity from federal criminal prosecution.”
Vikram Amar, a law professor at the University of California, Davis, who filed a friend-of-the-court briefing in the Colorado case, backing neither side but expressing skepticism about some of Mr. Trump's arguments, he said he was disappointed with the direction the case seemed to be heading.
“Unfortunately, it appears that the justices are coalescing around a number of analytically weak arguments as a way to resolve this case in a manner that they believe will avoid expending the court's scarce political capital,” he said.
Professor Amar added that the Colorado case should stand alone, but may not. “There is no logical connection between the issues in this case and those in the immunity case,” he said, “but a cynic might say that a ruling for Trump here gives the court the freedom to rule against him there.”