As the 2024 presidential election approaches, two intersecting legal cases have put the Supreme Court on track to play a pivotal, perhaps decisive, role in determining the outcome.
The first case stems from special counsel Jack Smith’s investigation into former President Donald Trump’s efforts to overturn the 2020 election. Smith has asked the Supreme Court to expedite a ruling on whether Trump can claim presidential immunity from prosecution for actions taken while in office. If the court sides with Smith, it would clear the way for Trump to face trial on election interference charges next year, creating a major disruption during his 2024 campaign.
The second case arises from a bombshell 4-3 ruling this week by the Colorado Supreme Court. The court found that Trump is disqualified from appearing on the state’s 2024 ballot due to the 14th Amendment’s ban on insurrectionists holding public office. This virtually guarantees the U.S. Supreme Court will have to resolve the explosive question of Trump’s eligibility across all 50 states. Doing so will force the justices to reexamine and relitigate the traumatic events of January 6, 2021.
The collision of these two cases represents the biggest test yet of doubts about the court’s legitimacy that have lingered for over two decades. The perception that ideological leanings and partisan calculations – rather than principled legal analysis – drive the court’s decisions first took root during Bush v. Gore in 2000.
Chief Justice John Roberts has spent his tenure trying to shore up public faith in the court as an objective, evenhanded institution. But faith in the court’s impartiality has steadily eroded in an age of extreme polarization, purity tests for nominees, ethics controversies involving the justices, and decisions like overturning Roe v. Wade. Most now see the court as simply another partisan battlefield.
Against this backdrop, the Trump cases in 2024 will challenge Roberts’ long campaign to restore confidence in the court. How it navigates the presidential election thicket may determine whether his effort succeeds or fails.
Echoes of 2000
The parallels between 2024 and 2000 are striking. In both cases, the Supreme Court must rule on state-level decisions with national consequences for the presidential race.
In 2000, the court weighed in on Florida’s recount procedures amid a razor-thin election. Its 5-4 decision halted the recount and ensured George W. Bush would become president.
Today, it must pass judgment on Colorado’s attempt to disqualify a potentially major 2024 candidate based on the 14th Amendment. The case clearly implies Trump engaged in “insurrection” on January 6th.
How the court handles this will write the latest chapter in the crisis of legitimacy ignited by Bush v. Gore. The notion that naked partisanship could shape the court’s rulings gained widespread acceptance after 2000.
While Bush v. Gore unfolded, many saw the circumstances as bizarre and surreal. But Trump’s fiery presidency – two impeachments, the Capitol attack – make 2000 seem almost quaint in retrospect.
Still, the underlying dynamics are very similar. The Supreme Court once again faces state-level decisions with nationwide impact on the presidential race.
And the perceived likely outcome also echoes 2000. Most legal experts believe the 6-3 conservative majority will balk at letting the Colorado ruling stand, effectively barring Trump from ballots everywhere.
How the court rationalizes this result, and whether any justices cross ideological lines, will measure Roberts’ ability to preserve institutional credibility. His past rulings on Obamacare and Roe showed a willingness to part with fellow conservatives in big cases.
Several Off-Ramps Available
The Supreme Court has about a dozen technical exit ramps to avoid the upheaval of booting Trump from the race. Some might draw support from liberal justices keen to avoid inflaming tensions.
But whatever route it picks, the Trump cases seem sure to strain Roberts’ legitimacy project. The inescapable political stakes of the decision will undercut claims that justices are neutral “umpires.”
As American University professor Stephen Wermiel notes, “The last thing I could imagine [Roberts] would want is for the court to find itself pretty much deciding critical issues about the 2024 election.”
One path, though, might appeal to key voting blocs and a conflicted Roberts. As POLITICO’s James Romoser suggests, the court could:
- Reject Colorado’s ruling and keep Trump on all ballots
- Endorse Smith’s view that Trump can be prosecuted, enabling a pre-election trial
This would project independence and let voters factor in any revealed criminal conduct. As historian David Garrow puts it, “Trump loses on immunity but scores a narrow win on the 14th Amendment.”
Such clever balancing might best preserve the court’s imperiled reputation. But it also illustrates Roberts’ isolation on an increasingly polarized bench.
Faced with two Trump curveballs, this outcome would neatly call one a strike and the other a ball. But it remains to be seen whether the embattled Roberts can muster the votes for such Solomonic tactics.
Election Denial and Insurrection Revisited
Beyond the political fallout, both the immunity and 14th Amendment aspects of the cases cut close to the bone for Trump.
Prosecutors aim to prove he corruptly abused his power as president to stay in office despite defeat. Trump asserts a president cannot be charged for any actions in office. If the court spurns his claim, Trump faces a pre-election reckoning on his 2020 scheming.
The Colorado case also reopens the insurrection question. Disqualifying Trump implies he incited the lawless Capitol assault to cling to power. Letting him run means condoning that dark chapter.
Both matters probe sore spots for Trump. Indulging his claimed immunity from prosecution validates an imperial, above-the-law presidency. Endorsing his baseless stolen election story requires overlooking his unconstitutional conduct.
Here the usually cautious Roberts court must confront incendiary issues it prefer to avoid – presidential overreach, election denial, presidential criminality.
With democracy itself in the dock, the chief justice faces his hardest balancing act yet. However he navigates the political and legal rocks ahead, it may leave the Roberts Court permanently transformed.
