The Supreme Court of the United States, or SCOTUS as it’s often called, will almost surely take up the decision by Colorado’s Supreme Court to throw Donald Trump off of the state’s Republican primary ballot. Whether the Colorado ruling is constitutionally sound is a genuinely close call that can be credibly argued. But suppose the justices rule quickly in Trump’s favor while slow-walking other questions related to the 45th president’s many indictments. In that case, it will delay justice, cloud the presidential election, and worsen the Court’s already degraded legitimacy.
Delayed justice, of course, is Trump’s legal strategy. Back in October, Trump asked U.S. District Judge Tanya S. Chutkan, who is presiding over the trial, to dismiss the charges based on his immunity claim. After she ruled, Trump appealed to the United States Court of Appeals for the District of Columbia, which forced Chutkan to suspend all procedural deadlines, raising the possibility of postponing the trial’s scheduled March 4 start.
While Special Counsel Jack Smith convinced the appellate court to consider Trump’s claim on a fast track (legal briefs are due January 2), another defeat for Trump will undoubtedly be appealed to the Supreme Court, potentially dragging out the proceedings further. So last week, Smith asked the high court not to wait for the appellate court’s decision. He argued that “the timing of [the appellate court] decision might prevent this Court from hearing and deciding the case this Term,” which typically ends in late June. That would mean no trial or verdict in the federal election subversion case before the 2024 election. (Trump’s lawyers, predictably, countered on Wednesday that SCOTUS would “benefit [from] an appellate court’s prior consideration of these historic topics.”)
Smith’s reasoning was sound, but the Colorado case adds new urgency to his argument and new threats to the Supreme Court’s legitimacy.
The Fourteenth Amendment declares that no one can “hold any office, civil or military, under the United States” who has “engaged in insurrection or rebellion … or given aid or comfort to the enemies thereof.” The Colorado court concluded that “President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country” amounted to engagement in insurrection.
But the Colorado justices—all appointed by Democrats—were divided 4-3. The dissenters argued that the “truncated procedural mechanism that resides in our state Election Code” that determined the former president engaged in insurrection gave him insufficient “due process,” especially since no jury has convicted him of any such offense. “In the absence of an insurrection-related conviction,” argued Chief Justice Brian Boatright, “to disqualify a candidate under… the Fourteenth Amendment is not a proper cause of action under Colorado’s election code.”
The case involves several elements without clear constitutional guidance, such as whether the Fourteenth Amendment even applies to the office of the president. (A state district court judge in Colorado argued it didn’t. The state Supreme Court overruled and said it did. Last month, Washington Monthly Legal Affairs Editor Garrett Epps was underwhelmed with the district court ruling.)
One central question SCOTUS must resolve is: For candidates to be deemed ineligible under the Fourteenth Amendment, must they first be convicted of an insurrection-related crime? Or can a court, on its own, determine involvement in an insurrection?
I am highly skeptical that the Supreme Court will step into this thicket and decree that Trump, or any candidate, can be disqualified without a conviction. But if it did, Trump couldn’t cry partisanship. (He could weave a convoluted Deep State/two-party duopoly conspiracy theory, but he couldn’t pin the blame on a single party’s judges.) With six of nine SCOTUS justices appointed by Republicans—and none of them remotely liberal or moderate in temperament like former Justices David Souter and John Paul Stevens—upholding the Colorado decision is one way the Court can prove it is above partisan politics.
But as the divided Colorado court shows, the question of what constitutes due process for alleged insurrectionists under the Fourteenth Amendment is debatable. The Supreme Court’s conservative supermajority might not risk harming its already soiled reputation by reinstating Trump on Colorado’s ballot.
However, if SCOTUS were to rule that due process has not been afforded Trump and is required, it must allow due process to proceed. That means acceding to Smith’s request for a speedy ruling on Trump’s claim that he’s immune from prosecution in the first place.
The only way for the justices to swiftly put Trump back on the Colorado primary ballot without sacrificing its own legitimacy is to consider—and reject swiftly—Trump’s immunity claim.
The Trump legal team’s case for immunity is farcically Orwellian. Noting judicial precedent that presidents can’t be criminally prosecuted for official responsibilities, Trump’s lawyers assert, “President Trump’s efforts to ensure election integrity” were “at the heart of his official responsibilities” and within “the scope of his duties.” Arguing that an attempted election theft was an effort to ensure election integrity is illogical. But logic is not the point of the filing; delay is.
Trump’s strategy is to delay all of the cases against him to Election Day 2024 when he might win office, replace the Attorney General, shut down the special counsel, and try quashing the federal cases against him. If he somehow got convicted, he could try to pardon himself and push that constitutional boundary. (Trump wouldn’t have the authority to stop the Georgia election tampering case brought by the district attorney for Fulton County, Fani Willis.) For SCOTUS to abet Trump’s delay-at-all-costs strategy concerning Smith’s federal cases would illegitimately tip the legal and political scales. A new New York Times/Siena College poll shows a quarter of Trump’s own supporters don’t believe he should be the nominee if convicted of a crime. They have a right to know if he’s guilty of what he has been charged.
The credibility of the Court under Chief Justice John Roberts took another hit this week—this time from The New York Times. It revealed in an exposé by Jodi Kantor and Adam Liptak how the Court’s conservative majority circumvented its usual deliberations to ram through the 2022 Dobbs decision repealing the nearly 50-year-old constitutional right to an abortion.
The stain of such brute judicial activism will never be cleansed. But while the Roberts Court is ideologically activist, it has not been politically partisan. The conservative supermajority—often including Trump’s three appointees, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—ruled against Trump’s multiple litigatory attempts at thievery of the 2020 presidential election. More recently, the Court has not helped statehouse Republicans game the redistricting process even as the justices shattered precedent to side with conservatives on a host of issues, including abortion, discrimination based on sexual orientation, and gun rights. Rulings against Republican candidates have helped the high court avoid a complete breakdown of trust and, in my view, justified resistance—successful so far—to court-packing.
So, SCOTUS has three options: uphold the Colorado decision kicking Trump off the state’s ballot, overturn Colorado while allowing the federal election subversion trial to proceed on schedule, or overturn Colorado and leave the federal election subversion trial in limbo while it debates whether Trump can claim presidential immunity—a move that would allow the 78-year-old a much-welcomed delay.
The first two options would show this Supreme Court is not reflexively partisan, restoring a degree of trust in this linchpin of American democracy. The third would sear its reputation and risk the end of the independent judiciary under a reelected President Trump. Let us hope the justices choose wisely for their sake—and ours.
