As never before, the law and the 2024 election are poised to collide at the U.S. Supreme Court.
All eyes are on what the justices will have to say if Trump’s team follows through on a vow to appeal the explosive ruling by the Colorado Supreme Court removing Donald Trump from the state’s GOP presidential primary ballot because, it said, he engaged in insurrection as part of the Jan. 6, 2021, attack on the U.S. Capitol.
The case is already drawing comparisons to Bush v. Gore, when the high court created an enduring political firestorm by intervening to end a ballot recount in Florida and effectively delivering the 2000 election to George W. Bush.
“It’s like a hornet’s nest,” Michael Gerhardt, a constitutional expert at the University of North Carolina, said of the Colorado case. “If the Supreme Court reaches the merits, it will have the same kind of fallout as Bush v. Gore no matter which way it goes, and that’s going to just really pummel the Supreme Court’s reputation and legitimacy.”
There are dozens of similar legal challenges seeking to bar Trump under the clause but until Tuesday none had been successful.
“We do not reach these conclusions lightly,” the court’s majority wrote in the 4-3 decision. “We are mindful of the magnitude and weight of the questions now before us. 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.”
Steven Cheung, the spokesman for the Trump campaign, called the ruling “deeply undemocratic” and said they had “full confidence the U.S. Supreme Court will quickly rule in our favor.”
What happens next?
Colorado’s four-justice majority predicted that the matter would wind up before the U.S. Supreme Court. They stayed the ruling until Jan. 4, 2024, saying it would maintain the status quo pending any review from the nation’s high court.
Steve Vladeck, a professor at the University of Texas Law School, said “under the terms of the Colorado Supreme Court’s decision, Trump will stay on the ballot so long as he merely asks the U.S. Supreme Court for review before Jan. 4.”
“Assuming he does that, he’d stay on the primary ballot — at which point this really becomes a question about the general election,” Vladeck said.
The Colorado Republican primary is set for March 5, but the state GOP, in light of the Colorado Supreme Court decision, said it was considering a pivot to a caucus rather than a primary to have greater control over who appears on the ballot.
Four U.S. Supreme Court justices would need to vote to take the case, and several legal experts who spoke with ABC News said they expected the high court to do so.
There are a number of questions that would be at the fore of any U.S. Supreme Court case, according to experts.
Vladeck said they “run the gamut from whether former President Trump actually engaged in ‘insurrection’ to whether he’s the kind of ‘officer’ to whom Section 3 of the 14th Amendment applies — to whether these questions are even appropriately decided by courts in the first place.”
UNC’s Gerhardt said he believed the U.S. Supreme Court may try to avoid ruling on the “merits” — or the thornier questions outlined by Vladeck — and may seek to punt any final say on the issue to the states or Congress, or rule on procedural questions only.
“If the Supreme Court weighs in on whether or not Section 3 applies to Trump or not, that final determination is going to be like a political hot potato,” Gerhardt said. “And I think that’s why the justices will be inclined to look for a way out of this or to pin this on somebody else.”
But other experts said there is a need for the U.S. Supreme Court to address this question once and for all, and that the justices have the power to do so.
“The election system requires a nationally uniform answer to this question,” said Richard Pildes, a professor of constitutional law at New York University.
“The Supreme Court long ago said, and it’s been repeated innumerable times, that the job of courts is to say what the law is,” said Ray Brescia, a professor at Albany Law School. “And the Supreme Court has the ultimate authority to say what the law is. It’s kind of hard to avoid that.”
Brescia underscored a lot will be at stake, as the case could have “seismic ramifications” for 2024.
“It’s hard to predict what the court will do, but I will say, in my opinion, the plaintiffs are going to have an uphill battle here just because I think enough members of the court are going to feel reticent to disenfranchise millions of voters such that they won’t have what all the polls today indicate is a very popular candidate within the Republican primary field,” Brescia said.
“I think it’s a real conundrum for the court,” Vladeck said. “To me, there are compelling arguments that Trump is disqualified by Section 3. But it’s also true that we’ve never used Section 3 to disqualify a major party’s presidential front-runner. So there’s a clash here between what the law appears to demand and the high politics of our democratic system.”
Other Trump cases pending
This could be the third Trump-related case to wind up at the U.S. Supreme Court as the 2024 election ramps up.
Special counsel Jack Smith, who has brought a federal election interference case against Trump over his behavior on and before Jan. 6, has asked the Supreme Court to decide the issue of presidential immunity. Trump’s team has argued the former president is immune from prosecution for actions taken while serving in office.
Last week, the Supreme Court also announced it would hear a major challenge to a felony obstruction statute used against hundreds of Jan. 6 Capitol rioters — and that is among the four charges brought against Trump by Smith.
