The US supreme court, stacked with rightwing justices appointed by Donald Trump and facing a crisis of public confidence in its impartiality, has been thrust into the thick of the 2024 presidential election through a number of highly charged and critical cases.
Last week’s dynamite ruling from the Colorado supreme court disqualifying Trump from the state’s presidential primary ballot on grounds that he engaged in insurrection on 6 January 2021 is almost certain to end up before the country’s highest court. Trump’s legal team has indicated it will appeal, and the nine supreme court justices will be under pressure to take the case or risk legal confusion spreading as the election year unfolds.
In addition to the Colorado ruling, the top court was also asked to step into the legal battle between Trump and the department of justice’s special counsel Jack Smith in the criminal prosecution of the former president over his attempt to subvert the 2020 election. At issue was whether Trump could claim presidential immunity even though he is no longer in the White House.
Earlier this month Smith asked the supreme court to expedite a decision to avoid delaying a criminal trial in Washington DC scheduled to begin on 4 March. On Friday the court issued a one-sentence denial, which returns the case back to a Washington DC-based federal appeals court, though it is likely to be only a matter of time before such a fundamental question wends its way back to the highest court for final adjudication.
The confluence of two white-knuckle legal tussles, both involving Trump and both having potentially far-reaching implications for the November election, threatens to drag the supreme court to the front and centre of the political fray. It comes at an awkward time for the court, which is already reeling from its own internal ethical scandals and plummeting public approval ratings.
The legal scholar Rick Hasen likened the situation in his Election Law Blog to the 2000 election in which the supreme court in Bush v Gore effectively handed the presidency to George Bush. “Unlike 2000, the general political instability in the US makes the situation now much more precarious,” Hasen said. “The political ramifications of disqualification would be enormous.”
To be shoved into the heart of the election battle is likely to be a deeply uncomfortable experience for all the justices, three of whom – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – were appointed by Trump. The prospect is especially fraught for the chief justice, John Roberts, who is known to be sensitive about public opinion and keen to keep the court above the political ruckus.
As the Colorado ruling was announced Mike Sacks, a writer on law and politics, quipped on social media: “Did you all just hear John Roberts scream too because I def did”.
Legal pundits agree that the supreme court is almost duty bound to take the Colorado case and hear it expeditiously. David Becker, executive director of the Center for Election Innovation and Research, said “it’s crucial for all Americans that the issue of Trump’s eligibility be resolved as soon as possible. The Republican party needs to know if it has a qualified nominee, election officials need to know who to name on the ballot, and the voters need to know who they can vote for.”
Speed is all the more important given that Colorado’s primary is fast approaching. It is scheduled for Super Tuesday, 5 March, when 17 states decide their preferred presidential candidates.
The Colorado ruling revolves around section 3 of the 14th amendment of the US constitution, which disqualifies from public office anyone who has “engaged in insurrection or rebellion”. The decision raises a number of knotty legal issues which the supreme court has never faced before, including the core question of whether Trump acted as an insurrectionist in the buildup to, and on, 6 January 2021 when the US Capitol was stormed by his supporters.
The justices will also have to deliberate on whether the 14th amendment can apply to a former president, and whether it requires a previous conviction related to insurrection for it to be invoked. Alternatively, the court might decide to sidestep such questions and avoid hearing the case on its merits, or knock the can down the road, though both those evasive options would leave a dark cloud of legal uncertainty hanging over the election.
Either way, there’s likely to be no happy way out for the top court.
As Steve Vladeck, a constitutional law scholar at the University of Texas, put it on Substack: “There are significant chunks of the American populace that will find it very hard to respect a supreme court decision that keeps Trump off the ballot, and there are significant chunks of the American populace that will find it very hard to respect a supreme court decision that keeps Trump on the ballot.”
Trust in the court has already been strained to breaking point. The latest opinion poll from Gallup in September showed that only 41% approve of the justices’s job performance, close to a record low.
The top court, under its new 6-3 Trump-secured supermajority of rightwing justices, has been embroiled in ethics scandals for much of this year. A series of blockbuster exposés by the investigative non-profit newsroom ProPublica has put it on the defensive, forcing the justices to adopt an ethics code last month.
In April, ProPublica revealed the lavish international travel and vacations enjoyed by the longest-serving justice, Clarence Thomas, courtesy of a Republican mega-donor from Texas, Harlan Crow. Later, the fellow rightwing justice Samuel Alito was shown to have flown on a private jet owned by the billionaire Paul Singer.
Thomas’s ethical woes go further than big money largesse. His wife, Ginni, was exposed by the US House investigation into the January 6 insurrection to have been deeply mired in Trump’s efforts to overturn the 2020 election, sending texts to then White House chief of staff Mark Meadows imploring him to keep fighting to block Joe Biden’s victory.
A chorus of demands for Thomas to recuse himself from the Colorado case has already begun, even before the court accepts the appeal. Gabe Roth, executive director of Fix the Court, a non-partisan group which advocates for reform, said that justices are under law required to step aside from cases where their impartiality might reasonably be questioned.
“Would any reasonable person believe that Justice Thomas can be impartial here? Well, there’s your answer,” Roth said.
The supreme court is likely to have an outsized influence on the 2024 presidential election in other less direct but potentially critical ways, not least in its stance over abortion. The court’s polarising decision to overturn the right to an abortion in June 2022 has had a long-term political impact.
Backlash to the ruling led to the Democrats performing more strongly than expected in the midterm elections later that year. More recently, the Democratic governor of Kentucky, Andy Beshear, won re-election and Democrats gained control of the legislature in Virginia, both on the back of abortion rights.
Into this febrile landscape, the supreme court is once again poised to meddle in the choices of American women with a second major abortion case currently on its docket. The justices are likely to rule by the end of June on mifepristone, one of two drugs used in most medication abortions which make up the majority of pregnancy terminations in the US.
With a decision likely to fall less than five months from the presidential election, another contentious ruling from the rightwing supermajority could have a dramatic bearing on the outcome of the race for the White House.
