Rule of Law

Donald Trump puts Supreme Court trials and tribulations in the spotlight

The former president’s attempt to avoid criminal prosecution while leading his party’s ticket will force the justices to answer thorny constitutional and political questions.

WASHINGTON (CN) — The Supreme Court will play a massive role in the future of Donald Trump’s legal and political future but the former president’s blockbuster cases will also shape the institution that decides them.

Already before the high court is the question of Trump’s immunity against criminal charges from his election interference efforts leading up to the Capitol riot on Jan. 6, 2021. On its heels is a likely appeal from the Colorado Supreme Court, which disqualified Trump from the state’s ballot because of his connection to the insurrection.

But before the justices can ink a ruling on either issue, they’ll have to answer some questions of their own. Lawmakers have already begun to call on Justice Clarence Thomas to recuse from any issue involving the effort to overturn the 2020 election because of his wife’s involvement.

Virginia “Ginni” Thomas sought to overturn the election result to keep Trump in office. Last year she was interviewed by the House committee investigating the insurrection, where she stood by her false claims that the 2020 election result was fraudulent. Ginni’s text messages revealed that her efforts stretched to the top levels of the White House, urging chief of staff Mark Meadow to act to keep Trump in office. She also sent emails to lawmakers in Arizona and Wisconsin.

Thomas was one of three dissents when the Supreme Court rejected election challenges from Trump in 2021. The calls for Thomas to recuse from related matters have only intensified since then.

In October, Thomas turned over a new leaf, stepping aside from the consideration of John Eastman’s effort to shield his emails from the Jan. 6 committee. Thomas did not explain his choice to recuse from this petition and not others.

Since then, the Supreme Court has implemented a new ethics code, including a provision requiring recusal if a justice’s spouse has any interest that could be affected by the outcome of the proceeding.

Thomas’ recusal from Trump’s cases could be consequential. The Bush appointee is a reliable vote for the conservative wing, and although they hold a supermajority on the court, it’s possible Trump’s cases could lead to some surprising coalitions.

Bush v. Gore was eminently predictable. … This case is not predictable because Trump is not Bush, and this is not politics as usual,” Eric Segall, a law professor at Georgia State University, said in a phone call.

With a few outliers, the Roberts court typically swings towards Republican interests. However, even those interests are unclear with Trump splitting the party.

“The Roberts court, in cases directly affecting the interests of the Republican party and elections, rules for the Republican party 99% of the time,” Segall said. “So what they perceive to be in the best interest of the Republican party is going to be a major part of this.”

One hint on how the justices might rule could be taken from the court’s landmark ruling last term in the college admission cases. Applying originalism, the justices rejected affirmative action policies under the original meaning of the 14th Amendment.

Should the justices review Trump’s disqualification from Colorado’s ballot, the court will shed light on a section of the 14th Amendment that has hardly been touched for over 150 years. However, some legal experts think the conservative majority’s preference for originalism will lead the justices to find that Trump can be disqualified.

“This part of the 14th Amendment hasn’t been used very much since the immediate years after the Civil War, but a lot of the justices on the court have described themselves as originalist, so this will be a test of their commitment to that methodology,” Smita Ghosh, appellate counsel with the Constitutional Accountability Center, said. “How they use the original meaning of the terms of that part of the 14th Amendment to come to their decision will be something to look at.” 

Section 3 of the 14th Amendment prevents anyone who has taken an oath to the country and then rebelled to hold office again. The provision was used in the post-Civil War Reconstruction era to prevent Confederate officers from taking office again. It has been revived in the wake of the Jan. 6 Capitol riot. In 2022, a New Mexico county commissioner was removed from office for engaging in an insurrection.

“I’m hoping that they once again look at the colloquial meaning of the terms and amendment and understand how the people who wrote it had intended it to apply,” Ghosh said. “Under that approach, it does apply to President Trump because if it could apply to a state governor, it should apply to the president as well. But in any case, it’s an interesting area where these self-professed originalists can really show their commitment to that methodology.”

Any decision around one of the most polarizing figures in American politics is likely to leave the Supreme Court at odds with half the country. Trump’s cases arrive at the court at a fraught time in its history. Public opinion of the court hit a new low after the court overturned Roe v. Wade. Since then, some justices have been trying to turn down the political temperature at the court. Trump will not be helpful in those endeavors.

“It’s a no-win situation for the Supreme Court,” Segall said.

While the constitutional issues presented by the two cases can only definitively be answered by the court, the justices still maintain broad discretion over their own docket.

“The court is going to view this as a package of cases not isolated, and they’re going to do what they think is politically best, all things considered given the package of cases,” Segall said.

There are some off-ramps the justices could take to avoid jumping into the 14th Amendment case. Recently, the high court has avoided ruling on election issues too close to election days using the Purcell principle, named after a 2006 case from the court’s emergency docket.

Colorado’s ruling is paused until Jan. 4, 2024. The next day is the state’s deadline to ink its primary ballot. Even if the court decided the case quickly, it’s nearly impossible for them to meet that deadline. The result will likely allow Trump to be placed on the primary ballot, shifting the consequences of the court’s ruling toward the general election. It’s not clear what would happen if Trump won the Republican primary but was not allowed to be listed on the general election ballot.

The justices could also cite the political question doctrine, which limits the court’s ability to hear political questions even if the case before the justices presents constitutional questions that are ripe for the court’s review.

Congress could also step in and take the issue off the justices’ plate. Section 3 has an added provision that allows lawmakers to overrule a candidate’s disqualification with a two-thirds vote in each house.

“I think they should take this out of the hands of the judiciary, and I think that because the issues involving the insurrection piece aren’t crystal clear,” Segall said. “It’s very reasonable to say he engaged in insurrection. It’s reasonable to say he did not — at least on January 6. Anyone who says it’s crystal clear is lying. Absent that kind of clarity, 70 million Americans should get to vote for who they want.”

The safety of judges and justices is also top of mind for the court as threats have escalated in the last few years. The Colorado Supreme Court received an influx of threats after removing Trump from the state’s ballot. While this factor will likely not sway the court’s decision, it’s a reason the court could want Congress to decide a political issue like Trump’s disqualification instead.