Donald Trump got the Supreme Court he wanted.
He will now discover how it will make its way between solid conservatism, political partisanship and the historical opportunity to determine the presidential election, possibly costing him a return to the White House. The Court’s reputation is at stake.
This moment recalls the Court having picked the president in 2000, when it handed George W. Bush a narrow victory over Al Gore.
Trump faces in 2024 more major legal challenges than all previous ex-presidents together. The biggest questions could either end his chances or give him a critical boost.
The latest case involves the Colorado Supreme Court decision that he cannot run in the Republican primary there because he participated in an insurrection against the U.S., culminating in the attack on the Capital on Jan. 6, 2021. The Fourteenth Amendment to the Constitution bans from federal or state office any office holder involved in an insurrection.
The Colorado court examined three questions. First, does the president hold an “office” covered by the Amendment? Second, was January 6 an insurrection or merely a riot? Third, did Trump’s actions and statements constitute participation in an insurrection? Colorado said “yes” to all three and ruled Trump off the ballot.
If the Supreme Court majority disagrees with the Colorado court on even one of these questions, keeping Trump off the ballot anywhere almost certainly would fail.
A second key case involves the Trump claim that he is immune from prosecution for virtually anything he did while president. In a 1974 case involving Richard Nixon, still president at the time, the Court ruled that his immunity did not extend to acts beyond his official duties. Were Trump’s efforts to undermine the state-certified electoral votes a part of his presidential duties?
If the Supreme Court gives Trump absolute immunity, the federal case against his alleged constitutional violations, being heard in Washington, would be severely damaged. If it denies him full immunity, it might in effect be deciding the case against him by eliminating his best defense.
These two cases could deal with most important legal challenges to his campaign. But they would not necessarily affect the federal case in Florida about his taking top secret documents
with him when he left Washington, the Georgia case about his election interference there or the New York civil case about his providing false financial information.
The media is fond of noting that Trump’s re-election effort seems to be unharmed by the many cases brought against him. Of course, he has not yet been finally convicted of anything relevant. And the torrent of cases, whatever the justification for their timing, can readily appear to his supporters as an opposition vendetta. Will final court decisions change that?
If the Supreme Court acts as courts often do, it will seek to decide the bare minimum necessary and leave alone other questions. If it is a more political than judicial body, it could be expansive and do Trump a lot of good (or harm, though that’s not likely).
In the Colorado case, it might decide that insurrection meant the Civil War when the Amendment was adopted, but that it has not otherwise been defined. Colorado alone cannot create that definition; that’s for Congress to do and it hasn’t. Trump remains on the ballot.
In the immunity case, the Court could decide against Trump, based on the Nixon precedent. The former president accepted that adverse ruling, even though it meant he was likely to be convicted in the Senate by the votes of his own party, leading him to resign.
The Court probably understands that a conservative body denying Trump his best protection would send a strong message to his supporters that he may have violated the law. By allowing the Court of Appeals to rule first, the Supreme Court may rely on the lower-court ruling, protecting itself from seeming to be simply a partisan player.
Taking action affecting Trump’s political future puts pressure on the Court. Senate Republicans turned against Nixon, showing that punishing a president must be bipartisan. But, with few exceptions, GOP senators did not reject Trump after his second, overwhelmingly partisan impeachment. The Court, like the Senate, must now make similar decisions.
Advocates asking the Court to harshly judge Trump by interpreting the Constitution and laws to punish him may be short-sighted. Whatever happens to him could happen to any successor.
The Constitution, though much revered, is much distorted by partisan practice. The Court has sometimes shared in the responsibility for that. Now it faces tough judgments. The answer about whether there was an insurrection cannot be found in the law. It will be the judgment of just nine, unelected people.
At their core, the Trump cases this year should turn not only on his actions but also on protecting the Constitution.
Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
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