How US Supreme Court might rule on Trump’s presidential run
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The Colorado Supreme Court declared that former president Donald Trump was ineligible to hold office because he had engaged in an insurrection.
PHOTO: REUTERS
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WASHINGTON – The United States Supreme Court, battered by ethics scandals, a dip in public confidence and questions about its legitimacy, may soon have to confront a case as consequential and bruising as Bush v Gore, the 2000 decision that handed the presidency to Mr George W. Bush.
Until 10 days ago, the justices had settled into a relatively routine term.
Then the Colorado Supreme Court declared that former president Donald Trump was ineligible to hold office
An appeal against the Colorado ruling has reached the justices, and they will probably feel compelled to weigh in. But they will act in the shadow of two competing political realities.
They will be reluctant to wrest from voters the power to assess Trump’s conduct, particularly given the certain backlash that would bring. Yet they will also be wary of giving Trump the electoral boost of an unqualified victory in the nation’s highest court.
Chief Justice John Roberts will doubtless 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 paths the court could take to keep Trump on state ballots without addressing whether he engaged in insurrection or even assuming that he had.
Among them: The justices could rule that congressional action is needed before courts can intervene, that the constitutional provision at issue does not apply to the presidency or that Trump’s statements were protected by the First Amendment of the US Constitution.
“I expect the court to take advantage of one of the many available routes to avoid holding that Trump is an insurrectionist who therefore can’t be president again,” said Harvard University law professor Nicholas Stephanopoulos.
Such an outcome would certainly be a stinging loss for Trump’s opponents, who say the case against him is airtight. But the Supreme Court would be attracted to what it would present as a modest ruling that allows Trump to remain on the ballot.
“This is a fraught political issue,” said University of Notre Dame law professor Derek Muller. “I think there will be an effort for the court to coalesce around a consensus position for a narrow, unanimous opinion. That probably means coalescing around a position where Trump stays on the ballot.”
If there is a consensus among legal experts, it is that the Supreme Court must act.
“For the sake of the country, we need resolution of this issue as soon as possible,” said University of California, Los Angeles law professor Richard Hasen.
“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 raise the risk of the party nominating an ineligible candidate in the general election.”
Trump was disqualified in Colorado and Maine
Prof Stephanopoulos said those determinations are legally sound. But he added that he is “highly sceptical” that the Supreme Court, which has a six-justice conservative supermajority, would agree.
“I think Chief Justice Roberts very much doesn’t want the court disrupting a presidential election, especially based on a novel legal theory that doesn’t have years of support from conservative judges and academics,” Prof 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 whom most Republican voters support.”
University of Texas law professor Tara Leigh Grove said the court has no options that will enhance its prestige.
“Although many members of the public would of course embrace a decision affirming the Colorado Supreme Court,” she added, “others would recoil at the decision. I don’t think there is any way for the Supreme Court to issue a decision on this issue that will clearly enhance its legitimacy with the public as a whole.”
She proposed a general rule of thumb: “Whenever 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 justices in that answer.”
She noted: “When it comes to cases that will have a massive impact on society, one might assume that the confidence level has to be particularly high.”
In her ruling on Dec 28, Secretary of State Shenna Bellows from Maine wrote that the facts about Trump’s conduct were “not in serious dispute”.
She noted: “The record establishes that Trump, over the course of several months and culminating on Jan 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power.
“The weight of the evidence makes clear that Mr Trump was aware of the tinder laid by his multi-month effort to delegitimise a democratic election, and then chose to light a match.”
Like the Colorado Supreme Court, Ms Bellows put her ruling on hold while appeals move forward. That means the US Supreme Court has some breathing room.
The Colorado case is before the justices in the form of a petition seeking review filed by the state’s 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 justices to move even faster, culminating in a decision on the merits by Feb 11.
Prof Hasen said the ruling from Maine adds to the need for prompt resolution.
“The fact that a second state, at least for now, has ruled Trump ineligible for the ballot puts major pressure on the Supreme Court to intervene in the case and to say something about how to apply Section 3 to Trump,” he added.
“The plaintiffs bringing these lawsuits are relentless, and they will keep trying to get Trump removed.”
Agreeing to hear the case is one thing. Resolving it is another. As the Colorado Supreme Court recognised, there are at least eight discrete issues in the case, and the voters challenging Trump’s eligibility must prevail on all of them.
“For Trump to win, he only needs to win on one issue,” Prof Muller said. “There are many options at the court’s disposal.”
On the other hand, leading conservative law professors who have examined the original meaning of Section 3, which was adopted after the Civil War, have recently concluded that it plainly applies to Trump and bars him from another term. Such originalist arguments generally resonate with the court’s most conservative members.
But other considerations may prevail.
“As much as the court may want to evade politics in its decisions, it’s unavoidable,” Prof Muller added. “The best it can do right now is try to achieve consensus to avoid the appearance of partisanship.” NYTIMES
