by The Supreme Court, hit by ethics scandals, a decline in public trust and questions about its legitimacy, will soon have to confront a case as consequential and painful as Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush.
Until 10 days ago, the justices had adopted a relatively routine mandate. Then the Colorado Supreme Court declared that former President Donald J. Trump was ineligible to hold office because he had participated in an insurrection. On Thursday, based on that court’s reasoning, a Maine elections official he did the same.
The justices have already received an appeal of the Colorado ruling, and 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 evaluate Trump’s conduct, particularly given the certain backlash that would bring. However, they will also be cautious about giving Trump the electoral boost of an unconditional victory in the land’s highest court.
Chief Justice John G. Roberts Jr. will no doubt seek consensus or at least try to avoid a partisan split of the six Republican appointees against the three Democrats.
You may want to explore the many paths the court could take to keep Trump on state ballots without addressing whether he participated in an insurrection or even assuming that he did.
Among them: Judges could rule that congressional action is needed before courts can intervene, that the constitutional provision in question does not apply to the presidency or that Trump’s statements were protected by the First Amendment.
“I hope the court will take advantage of one of the many routes available to avoid holding that Trump is an insurrectionist and therefore cannot be president again,” said Nicholas Stephanopoulos, a law professor at Harvard.
Such an outcome would certainly be a painful loss for Trump’s opponents, who say the case against him is irrefutable. But the Supreme Court would be drawn to what it would present as a modest ruling that would allow Trump to remain on the ballot.
“This is a sensitive political issue,” said Derek Muller, a law professor at the University of Notre Dame. “I think the court will make an effort to unite around a consensus position for a narrow and unanimous opinion. “That probably means uniting around a position where Trump remains on the ticket.”
If there is consensus among legal experts, it is that the Supreme Court must act.
“For the good of the country, we need a resolution to this issue as quickly as possible,” said Richard L. Hasen, a law professor at the University of California, Los Angeles. “Republican primary voters deserve to know if the candidate they are considering supporting is eligible to run. Otherwise, they waste their votes on an ineligible candidate and increase the risk that the party will nominate an ineligible candidate in the general election.”
Trump was disqualified in Colorado and Maine based on Section 3 of the 14th Amendment, which bars officials who have sworn to support the Constitution from holding office if they later participate in an insurrection.
Professor Stephanopoulos said those determinations 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 doesn’t want the court to disrupt a presidential election, especially based on a novel legal theory that doesn’t have years of 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 most Republican voters support.”
Tara Leigh Grove, a law professor at the University of Texas, said the court has no options that would enhance its prestige.
“While many members of the public would, of course, accept a decision affirming the Colorado Supreme Court,” he said, “others would recoil from the decision. “I don’t think there is any way for the Supreme Court to issue a decision on this issue that would clearly enhance its legitimacy with the general public.”
He proposed a general rule: “Whenever the Supreme Court considers a truly extraordinary constitutional case, it must confront at least two questions: first, what is the best answer to the legal question; and second, how confident the judges are in that answer.”
“When it comes to cases that will have a massive impact on society,” he said, “one might assume that the level of trust has to be particularly high.”
In her ruling Thursday, Secretary of State Shenna Bellows of Maine wrote that the facts about Trump’s conduct were “not seriously in dispute.”
“The record establishes that Mr. Trump, over several months ending on January 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent the certification of the election. 2020 and the peaceful transfer of power,” he wrote, adding: “The weight of the evidence makes it clear that Mr. Trump was aware of the tinder set by his months-long effort to delegitimize a democratic election, and then decided to light a match ”.
Like the Colorado Supreme Court, Bellows put his ruling on hold while appeals proceed. That means the U.S. Supreme Court has some wiggle room.
The Colorado case is already before the judges in the form of a petition seeking review filed by the state Republican Party, which urged the court to resolve the case by March 5, when many states, including Colorado and Maine, hold primaries. Otherwise, they said, voters “will face profound uncertainty and the electoral process will be irrevocably damaged.”
The six voters who prevailed in the Colorado case asked the judges move even faster, culminating in a decision on the merits by February 11.
Professor Hasen said the Maine ruling heightened the need for a quick resolution.
“The fact that a second state, at least for now, has ruled that Trump is ineligible for the election puts a lot of pressure on the Supreme Court to intervene in the case and say something about how to apply Section 3 to Trump” , said. “The plaintiffs filing these lawsuits are relentless and will continue to try to get Trump removed from office.”
Agreeing to hear the case is one thing. Solving it is another. As the Colorado Supreme Court acknowledged, there are at least eight distinct issues in the case, and voters challenging Trump’s eligibility must prevail on all of them.
“For Trump to win, he only needs to win on one issue,” Professor Muller said. “There are many options available to the court.”
On the other hand, prominent conservative law professors who have examined the original meaning of Section 3, which was adopted after the Civil War, have recently concluded that it clearly applies to Mr. Trump and excludes him from another term. . These originalist arguments generally resonate with the court’s more conservative members.
But other considerations may prevail.
“As much as the court may want to evade politics in its decisions, it is inevitable,” Professor Muller said. “The best thing to do now is try to reach consensus to avoid the appearance of partisanship.”
