In a matter of weeks, the Supreme Court has taken center stage in former President Trump’s legal battles poised to dominate the 2024 presidential race.
The justices were already grappling with two cases implicating Trump’s criminal charges when, on Tuesday, a new headache emerged: whether Trump can be barred from the ballot under the 14th Amendment.
Colorado’s top court kicked Trump off the state’s primary ballot, an extraordinary decision all but certain to reach the Supreme Court.
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It only further shoves the justices head-first into issues that could upend the 2024 election.
“If that decision is upheld, then I think Colorado won’t be the only state that decides to exclude Donald Trump from the ballot … other states will follow suit to remove him from the ballot,” said Barbara McQuade, a former federal prosecutor and current law professor at the University of Michigan. “This could be the most consequential Supreme Court decision since Bush v. Gore, and it could really determine the outcome of the election.”
The Colorado Supreme Court ruled Trump is ineligible to serve under the 14th Amendment’s insurrection ban because of his actions leading up to the Jan. 6, 2021, Capitol riot.
To reach that finding, the court determined Trump “engaged in” insurrection, the 14th Amendment applies to the presidency, Trump’s fiery speech at the Ellipse before a mob of his supporters stormed the Capitol was not protected by the First Amendment and the court had authority to decide those issues — all matters that could eventually be parsed by the U.S. Supreme Court.
The legal battle has long been anticipated to reach the justices in Washington at some point, but Trump’s plan to appeal Tuesday’s decision gives the conservative-majority court, with three justices appointed by Trump, an avenue to take up the weighty issues soon.
“It seems strange to allow the process to continue to play out, so I do think it’s going to force the court’s hand,” said Derek Muller, a law professor at the University of Notre Dame whom the judges cited in the Colorado ruling. “I don’t think the court likes its hand being forced. But I think it’s maybe just an inevitability in a case like this.”
The Colorado challenge to Trump’s candidacy is not the only case barreling toward the U.S. Supreme Court that could upheave the 2024 presidential race. The justices also are beginning to confront the former president’s criminal indictments.
In Trump’s federal case criminally charging him with conspiring to overturn the 2020 election results, special counsel Jack Smith has asked the Supreme Court to leap-frog a lower court and immediately consider Trump’s immunity defense.
The gambit is aimed at keeping Trump’s March 4 trial date — the first scheduled of his criminal trials — on track. A federal district judge rejected the defense, but the case is effectively halted until the former president’s appeal is resolved.
Trump’s lawyers argued in court papers Wednesday that the question before the Supreme Court is among the “most complex, intricate and momentous issues” that it will be asked to decide, urging the Supreme Court to stay out of the case, for now.
McQuade predicted the court would ultimately reject Trump’s immunity claim. But in the meantime, the delay could bungle the federal election interference case’s trial timeline, potentially pushing that trial back two to three months.
“This was the time when discovery would have continued, when the court would have addressed other motions that are pending, when the court would have begun sending out jury questionnaires to begin the jury selection process,” she said. “All of that has to stop until the Court of Appeals and-or Supreme Court decides this question.”
It remains to be seen whether the Supreme Court will wait for the lower court or hear the issue immediately, but the justices did speed up their consideration of deciding which route to take.
“They’re already acutely aware in some of these cases that there’s time-sensitive questions and that refusing to move quickly is a decision,” Muller said.
Muller said it could create a similar “temptation” for speed in the 14th Amendment case, where the clock also is ticking. Rather than a trial date, at issue is Colorado’s upcoming Jan. 5 statutory deadline for finalizing the primary ballot.
If an appeal is filed, Trump’s name automatically remains on the ballot until the justices resolve the matter. The process could take weeks, if not months.
Whenever the ruling lands, the decision could upend Trump’s future for the general election not only in Colorado, but also nationwide.
Many legal observers believe the justices will, however, reverse the Colorado court’s decision. To keep Trump’s name on the ballot, the justices only must rule for Trump on any one of the many prongs at issue in the case.
Rather than deciding whether Trump engaged in insurrection or if the clause applies to the presidency, the justices could also resolve the case by ruling state courts can’t kick candidates off the ballot under the 14th Amendment.
“Even if you think that Donald Trump is an insurrectionist, as many people do, it might well be that he can run but he can’t serve,” said Saikrishna Prakash, a University of Virginia law professor and former clerk to Justice Clarence Thomas.
Some observers have compared the stakes to Bush v. Gore, when the Supreme Court stopped recounts in Florida and effectively made Bush the winner.
“I think there’s no question that saying a state has this power or lacks this power will reverberate in decisions to come about how presidential elections are administered, how presidential ballot access rules apply,” said Muller.
Taking up the 14th Amendment and immunity cases would only add to a case the justices already agreed to hear implicating Trump’s Jan. 6 criminal case.
Joseph Fischer, a former police officer, petitioned the high court to eliminate one of the several counts he faces in connection with the Capitol attack: obstruction of an official proceeding. He has argued that the charge — which criminalizes “corruptly” obstructing, impeding or interfering with an official government proceeding — should not apply to rioters and that the statute is unclear.
Trump faces the same count in his election subversion case, meaning any outcome at the Supreme Court will inevitably alter the course of the case.
The challenge doesn’t pump the brakes on Smith’s case against Trump like the immunity question does, but it could present a dilemma. With two of Trump’s charges linked to the statute being challenged, Smith is left with limited choices: drop Trump’s obstruction charges to avoid a future litigation risk or let the process play out.
“I’m sure he doesn’t want to give up any channels — especially obstruction, which brings with it the highest penalty — so … one thing he could do is say, ‘Let’s just pause everything until June,’” McQuade said. “It’s probably going to happen anyway because of the immunity question.”
“It seems to me that might be where we’re headed,” she added.
The justices agreed to take up the challenge to the obstruction law. Arguments are expected in the spring, with a decision by the end of June.
If that wasn’t enough, more Trump-related matters could be imminent. An appeals court last week rejected a bid by one of Trump’s Georgia co-defendants, Trump White House chief of staff Mark Meadows, to move his charges to federal court.
Meadows could appeal to the Supreme Court at any time.