Supreme Court Seems Destined to Play Pivotal Role in 2024 Elections

The Washington Post / Robert Barnes, Perry Stein

14:06 JST, December 21, 2023

WASHINGTON – The Supreme Court will be pressed to answer multiple questions crucial to next year’s presidential election, thrust into a pivotal role not seen since its 2000 decision that sealed the victory for President George W. Bush.

Bush v. Gore split the nation and left lasting scars. However, the legal battles being waged in courtrooms across the nation involving former president Donald Trump and his bid to regain the presidency are more numerous, more complicated and could prove even more divisive in a polarized nation.

Some of the cases raise issues never squarely addressed by the Supreme Court, and seem to be quandaries that can be settled only by the nine justices.

They include Tuesday’s ruling by the Colorado Supreme Court that Trump’s name cannot appear on the primary-election ballot in that state because he engaged in insurrection on Jan. 6, 2021, and Trump’s claim that he is protected by presidential immunity from being prosecuted for trying to block Joe Biden’s 2020 election victory.

The court, with a 6-to-3 conservative majority that features three justices chosen by Trump, has a slumping public approval rating and a reputation dulled by precedent-reversing decisions and public concerns about ethics and outside gifts. The public views the court through a starkly partisan lens, according to polls, with Democrats registering little confidence in the court and Republicans feeling just the opposite. Some Democrats in Congress have called on Justice Clarence Thomas to recuse himself from cases involving Trump’s political interests because of his wife Virginia “Ginni” Thomas’s role in encouraging the former president to challenge the results of his loss to Biden.

“Unlike in 2000 the general political instability in the United States makes the situation now much more precarious,” Richard Hasen, an election law expert at UCLA, wrote Tuesday night on his blog.

Hasen was reacting to Colorado’s dramatic 4-to-3 decision, which was the first time a court has found that a presidential candidate could be barred from election because of a post-Civil War constitutional amendment that prevents insurrectionists from holding office.

Other states are considering similar lawsuits, some of which have failed in lower courts; the Colorado court put its ruling on hold until Trump’s lawyers – who have vowed to appeal – can ask the U.S. Supreme Court to settle the issue.

It would be only one more item on a weighty list.

The justices already have said they will decide the validity of a law used to charge hundreds of people in connection with the Jan. 6 riot, which also has been levied against Trump as part of his four-count federal election obstruction case in Washington.

The law makes it a crime to obstruct or impede an official proceeding – in this case, disruption of Congress’s formal certification of Biden’s victory. Scores of Jan. 6 riot defendants have been sentenced under the law, and more are awaiting trial.

Meanwhile, special counsel Jack Smith has asked the Supreme Court to fast-track consideration of Trump’s claim that he is immune from prosecution for the alleged election obstruction – intensifying the legal jockeying over whether Trump’s criminal trial in D.C. will stay on schedule to begin March 4.

Trump’s lawyers told the court Wednesday that there was no need to expedite their consideration of that issue, arguing that the government has not given a good reason to bypass a lower appeals court. Republican attorneys general from 19 states filed a brief supporting Trump’s position.

The high court could decide whether to take up the immunity issue on an expedited timetable as early as this week.

“The United States recognizes that this is an extraordinary request,” Smith told the justices in his filing last week. “This is an extraordinary case.”

Trump’s legal team countered that a case as high-stakes as this one should not be rushed, and called Smith’s attempt to expedite the appeals process a partisan attempt to shape the presidential election.

“The fact that this case arises in the vortex of political dispute warrants caution, not haste,” Trump’s filing reads. Delay is in Trump’s interest; if he wins another term in the White House, he could order his Justice Department to drop the case against him.

Even as they urge the court to reject Smith’s petition, lawyers for Trump will be simultaneously asking the justices to quickly review and reverse the Colorado decision.

Waiting in the wings are questions about Trump’s civil liability in the events of Jan. 6, and the gag orders imposed by judges overseeing his criminal case in D.C. and a civil case in New York, which Trump says hinder his ability to campaign for the Republican nomination. Polls show him far ahead as the leading contender.

If that were not enough, there is abortion.

The justices will decide this term whether to limit access to a key drug used in more than half of U.S. abortions. That case returns the issue of reproductive rights to the high court for the first time since the conservative majority overturned Roe v. Wade in June 2022.

Polls show the decision in Dobbs v. Jackson Women’s Health Organization was an unpopular one, and a politically valuable issue for liberals and Democrats. Since the decision, voters in seven states have rebelled against conservative legislatures and their restrictions on abortion, voting to ensure a right to the procedure in state constitutions. Ohio, with its Republican-leaning electorate, was the latest to do so.

Republicans have struggled with how to present the issue, while Kentucky Gov. Andy Beshear (D) won reelection by campaigning on an abortion rights message. The same day, Democrats took full control of the Virginia legislature, after pledging to block Republican Gov. Glenn Youngkin’s intentions to curb abortion there.

But it is the question about the viability of Trump’s candidacy that is the most perilous.

It involves a theory embraced by some liberal and conservative scholars relating to the 14th Amendment, which in 1868 granted citizenship to those born or naturalized in the United States and guaranteed civil rights to all Americans, including those who had been enslaved. In addition, Section 3 of the amendment barred people from office if they swore an oath to the Constitution and then engaged in insurrection. The measure was meant to keep former Confederates from returning to power.

Six Republican and independent voters from Colorado invoked the provision in a lawsuit meant to keep Trump off the ballot. The suit required applying Section 3 to the particulars of the Jan. 6 riot at the Capitol.

Courts had to decide whether the event was an insurrection, and whether Trump engaged in the event through his messages to supporters before, during and after the riot. Other questions included whether courts may enforce Section 3 without implementing legislation from Congress and whether the section’s restrictions apply to those seeking the presidency.

Trump was impeached in the House but acquitted in the Senate, and Smith has not charged him with insurrection.

But after a week-long trial, Denver District Judge Sarah B. Wallace in November was satisfied that Trump’s actions amounted to insurrection. Still, she said Trump could remain on the ballot because Section 3 does not apply to those running for president.

The Colorado Supreme Court disagreed with the latter finding, saying it was clear the presidency was included.

“We are mindful of the magnitude and weight of the questions now before us,” the majority wrote in its decision. “We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

The novelty of the question makes it difficult to predict the outcome of the U.S. Supreme Court’s likely review. Trump would need to prevail on only one factor to remain on the ballot. And the Colorado ruling says that if he appeals the decision, and the U.S. Supreme Court does not act before a Jan. 4 deadline for changing the primary ballot, his name will remain on that ballot.

Many experts have said it would be extraordinary for the high court to disqualify a former president and leading Republican candidate. The three dissenters on the Colorado Supreme Court did not really reach the merits of the case, but found other procedural ways to rule that Trump should remain an option for voters.

“The U.S. Supreme Court really needs to hear the case even if no other federal courts hear it,” said Steven Calabresi, a law professor at Northwestern Law School. “We cannot have a presidential election in which one state, Colorado, does not have Trump’s name on the ballot without the approval of the Supreme Court.”

Mark A. Graber, a constitutional law professor at the University of Maryland Francis King Carey School of Law, said that Section 3 does not require a person to be convicted of crimes related to participation in an insurrection in order to be disqualified from a ballot. He said the U.S. Supreme Court could delve into the question of whether Trump participated in an insurrection – or it can opt to rule on technical grounds, leaving Trump out of any opinion.

“This is an important question and someone, somewhere should give an authoritative answer: Did Donald Trump engage in an insurrection?” said Graber, who submitted a supporting brief in the Colorado case arguing that Trump should be barred from the ballot. “Because if he did, then he is not qualified.”

Trump nominated three members of the Supreme Court’s conservative majority – Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett – each of whom helped overturn the right to an abortion and cemented other decisions that thrilled conservatives.

It would be too simple, though, to conclude that a conservative court will automatically rule for a conservative candidate.

None of Trump’s nominees were sympathetic to his specific requests at the court regarding the release of his financial documents, delivery of White House documents to the congressional committee investigating Jan. 6 and challenges from him and his allies to the 2020 election results.

It’s a lesson other presidents and candidates have learned. The majority in the Bush v. Gore decision were Republican appointees, but so were two of the four dissenters. President Bill Clinton saw his two nominees vote with a unanimous court to reject his challenge that he should be freed from responding to a sexual harassment lawsuit from Paula Jones.

All of President Richard M. Nixon’s nominees who participated in the case against him agreed that he had to turn over White House tape recordings, a decision that led to his resignation.