More than any US Supreme Court case in decades, former President Trump’s appeal to the colorado decision Disqualifying him from the state’s primary election combines a big political moment with a dearth of governing laws. For the court, which announced last week that he would hear the case at breakneck speed, that is a precarious combination that exposes him to accusations of political bias.
So how will the court rule? I think he will be reluctant to allow a fragmented result in which Trump appears on the ballot in some states but not others. To avoid such a patchwork, the majority of justices are likely to overturn the Colorado Supreme Court’s ruling that Trump participated in an insurrection and is therefore ineligible for office under the 14th Amendment. And the court will likely do so in a way that also prevents other states from removing the former president from the ballot.
As the court has arguably done in other landmark decisions, it may well act politically in the sense that it will be more concerned with the practical outcome. That’s different than saying the decision will be split along partisan lines. A clearly partisan result similar to that of the Bush vs. Gore would be a disaster for the court’s already diminished reputation.
The majority could well be made up of those who likely share Chief Justice John G. Roberts Jr.’s concern about the court’s reputation and his hesitation to meddle in elections. That majority would be more likely to include justices open to institutionalist arguments, such as Elena Kagan and Brett M. Kavanaugh, than far-right mavericks Samuel J. Alito Jr. and Clarence Thomas. That kind of coalition could favor a logic that is far from pristine but serves broader social and political goals.
An early sign of such a consensus is the court’s unanimous order accepting the case and setting an accelerated timeline, with an oral hearing scheduled for a month. The later the court acts, the more intrusive and controversial its role will become.
The court also maintained maximum flexibility in taking the case. Instead of considering the narrow legal questions raised by the Colorado Republican Party or those questioning Trump’s qualification for the election, the justices accepted Trump’s broader question. That means that any of the approximately seven reversal bases established in Trump’s request They are fair game.
It is difficult at this point to imagine the court upholding Colorado’s opinion and thus also allowing each state to make its own determination about whether the Republican front-runner appears on the ballot. I don’t think such an agreement would be unconstitutional, but it would be an unpleasant outcome that would fall squarely at the court’s feet.
The Constitution gives an important role to the states in electing the president, to the point that the winner of the national popular vote has lost two of the last six elections. I don’t think the framers would have been bothered by the prospect of different states having different candidates on their presidential ballots. But they also did not foresee a national two-party system.
In 2024, the social, cultural, and political fact is that the presidential election will be an entirely national contest played out according to quaint and obscure state rules. Failure of one of the two major party candidates to appear on some state ballots and not others could encourage even more Americans to refuse to recognize the legitimacy of the election. I think the court would find it abhorrent.
Furthermore, it would be virtually impossible for the court to come up with a single solution that would prohibit Trump from appearing at the polls in every state. The court is not a fact-finding body, and this case does not present the kind of record from which it could be concluded that Trump “engaged in an insurrection” under Section 3 of the 14th Amendment. The justices could rule that Colorado’s determination was not erroneous under federal law, but that is a far cry from guaranteeing the same outcome in every other state.
That’s why a majority of justices are more likely to overturn the Colorado Supreme Court’s decision under a principle of federal law that also shuts down parallel efforts to remove Trump from the ballot in Maine, Massachusetts, Illinois and other states.
Trump’s petition provides the justices with several means to do so, from finding flaws in the Colorado court’s definition of “insurrection” to determining that the president is not an “official” of the United States. All of these means of reversing Colorado’s decision have major flaws. But given the political, legal and practical considerations before the court, I believe it will decide on one of them to avoid even worse consequences.
Harry Litman is the host of Podcast “Talking about federals”. @harrylitman
