WASHINGTON — The Supreme Court will be pressed to answer multiple questions crucial to next year’s presidential election, thrust into a pivotal role not seen since its 2000 decision that sealed the victory for President George W. Bush.
Bush v. Gore split the nation and left lasting scars. But the legal battles being waged in courtrooms across the nation involving former president Donald Trump and his bid to regain the presidency are more numerous, more complicated and could prove even more divisive in a polarized nation.
Some of the cases raise issues never squarely addressed by the Supreme Court, and seem to be quandaries that can be settled only by the nine justices.
But the court, with a 6-to-3 conservative majority that features three justices chosen by Trump, has a slumping public approval rating and a reputation dulled by precedent-reversing decisions and public concerns about ethics and outside gifts. The public views the court through a starkly partisan lens, according to polls, with Democrats registering little confidence in the court and Republicans feeling just the opposite.
In addition, some Democrats in Congress have called on Justice Clarence Thomas to recuse himself from cases involving Trump’s political interests because of his wife Virginia “Ginni” Thomas’s role in encouraging the former president to challenge the results of his loss to Joe Biden in 2020.
“Unlike in 2000 the general political instability in the United States makes the situation now much more precarious,” Richard Hasen, an election law expert at UCLA, wrote Tuesday night on his blog.
Hasen was reacting to the dramatic 4-3 decision by the Colorado Supreme Court on Tuesday that said Trump’s name cannot appear on the primary-election ballot in that state because he engaged in insurrection on Jan. 6, 2021. It was the first time a court found that a presidential candidate could be barred from election because of a post-Civil War constitutional amendment that prevents insurrectionists from holding office.
Other states are considering similar lawsuits, some of which have failed in lower courts; the Colorado court put its ruling on hold until Trump’s lawyers – who have vowed to appeal – can ask the U.S. Supreme Court to settle the issue.
It would be only one more item on a weighty list.
The justices already have said they will decide the validity of a law used to charge hundreds of people in connection with the Jan. 6 riot, which also has been levied against Trump as part of his four-count federal election obstruction case in Washington.
The law makes it a crime to obstruct or impede an official proceeding – in this case, disruption of Congress’s formal certification of Biden’s victory. Scores of Jan. 6 riot defendants have been sentenced under the law, and more are awaiting trial.
Meanwhile, special counsel Jack Smith has asked the Supreme Court to fast-track consideration of Trump’s claim that he is immune from prosecution for the alleged election obstruction – intensifying the legal jockeying over whether Trump’s criminal trial in D.C. will stay on schedule to begin March 4.
The court has called for Trump’s lawyers to respond on the matter by Wednesday afternoon, and could render a decision on whether to take the case on an expedited timetable as early as this week.
“The United States recognizes that this is an extraordinary request,” Smith told the justices in his request. “This is an extraordinary case.”
Lawyers for Trump will be simultaneously asking the justices to quickly review and reverse the Colorado decision, and to reject Smith’s call to settle quickly the question of Trump’s criminal vulnerability rather than letting it play out in lower courts first.
Waiting in the wings are questions about Trump’s civil liability in the events of Jan. 6, and the gag orders imposed by judges in D.C. and New York, which Trump says hinder his ability to campaign for the Republican nomination. Polls show him far ahead as the leading contender.
If that were not enough, there is abortion.
The justices will decide this term whether to limit access to a key drug used in the majority of early abortions. That case returns the issue of reproductive rights to the high court for the first time since the conservative majority overturned Roe v. Wade in June 2022.
Polls show the decision in Dobbs v. Jackson Women’s Health Organization to be an unpopular one, and a politically valuable issue for liberals and Democrats.
Since the decision, voters in seven states have rebelled against conservative legislatures and their restrictions on abortion, voting to ensure a right to the procedure in state constitutions. Ohio, with its Republican-leaning electorate, was the latest to do so.
Republicans have struggled with how to present the issue, while Kentucky Gov. Andy Beshear (D) won reelection by campaigning on an abortion rights message. The same day, Democrats took full control of the Virginia legislature, after pledging to block Republican Gov. Glenn Youngkin’s intentions to curb abortion there.
The Colorado ballot decision presents the most existential threat to Trump’s candidacy.
It involves a theory embraced by some liberal and conservative scholars relating to the 14th Amendment, which in 1868 granted citizenship to those born or naturalized in the United States and guaranteed civil rights to all Americans, including those who had been enslaved. In addition, Section 3 of the amendment barred people from office if they swore an oath to the Constitution and then engaged in insurrection. The measure was meant to keep former Confederates from returning to power.
Six Republican and independent voters from Colorado invoked the provision in a lawsuit meant to keep Trump off the ballot. After a week-long trial, Denver District Judge Sarah B. Wallace in November ruled that Trump had engaged in insurrection but that he could remain on the ballot because she determined Section 3 does not apply to those running for president.
The Colorado Supreme Court disagreed with the latter finding, saying in a ruling issued late Tuesday that it was clear the presidency was included.
“We are mindful of the magnitude and weight of the questions now before us,” the majority wrote in its decision. “We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
Patrick Marley contributed to this report.
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