Consensus on Coming Trump Ballot Appeal Looms Over Supreme Court

A US Supreme Court decision on whether Donald Trump is eligible to serve as president again will have seismic political ramifications, but legal experts say the ultimate outcome may not be as important as how the justices get there.

The court appears all but certain to weigh in after a divided Colorado Supreme Court said Dec. 19 that the US Constitution bars Trump from appearing on the 2024 primary ballot in the state because of his role in the Jan. 6 Capitol riot. Other states are also grappling with the issue as an already tumultuous election draws near.

The case presents several complex and novel issues, any of which could upend the election. They range from whether the constitutional provision applies to the president, to if Trump’s actions reach the level necessary to disqualify him, and if it’s a question the federal courts should even decide.

The Trump campaign is promising a quick appeal of the Colorado decision to the high court, which is also weighing immunity for the former president from criminal prosecution and a separate Jan. 6 appeal from Capitol riot defendants.

Harvard law professor Guy-Uriel Charles said regardless of how the justices ultimately decide the Colorado case, there will be a strong pull to reach some kind of consensus and avoid a splintered ruling that could further cast doubt on the outcome of the election.

It’s likely that several justices are thinking about the importance of “speaking with one voice,” Charles said.

Dreading Division

Charles and others pointed to the landmark 2000 ruling in which a split Supreme Court decided the presidential election for Republican George W. Bush when it ruled Florida’s vote tally could stand after weeks of recounts.

“I think Bush v. Gore still plays a heavy role in terms of how we think of the Supreme Court’s legitimacy,” said Anthony Michael Kreis, who teaches constitutional law at Georgia State College of Law.

“I’m sure the justices are mindful of the institutional harms and the reputational damage that was caused by a very divided opinion that seemed to hand an election” to the party that nominated a majority of the justices at the time.

Institutionalists like Chief Justice John Roberts and Justices Elena Kagan and Brett Kavanaugh are likely to lead the charge for a consensus ruling, Charles said, given their concerns on how the court’s decisions and decision-making process impact the court’s legitimacy.

In recent cases where the political ramifications have been so much in the forefront, the pattern has been to pull together centrist coalitions that include justices from both the right and the left, said Walter Olson of the libertarian think-tank the Cato Institute.

“I think a lot of the court dreads a 6-3 or 5-4 decision,” Olson said. Those justices don’t want to “live down to the expectations of their critics” that the Supreme Court is just another political branch, he said.

Off-Ramp

The harder question would be how the court could pull off consensus. That’s the “trillion dollar question,” Charles said.

Andrea Katz, a constitutional law professor at Washington University School of Law in St. Louis, said one of the easiest ways to resolve the case would be to find that Congress had to pass legislation enforcing the constitutional provision.

The Colorado high court cited a 2012 opinion by then-Judge Neil Gorsuch of the US Court of Appeals for the Tenth Circuit in finding that the constitutional ban was “self-executing,” meaning it didn’t require additional congressional action to enforce it.

Gorsuch wrote the majority opinion in that case, ruling against a bid by a naturalized citizen to be added to the state’s ballot as a presidential candidate. He wrote that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

Legal experts have said that without federal authority on enforcing the provision against insurrections holding office, it could lead to individual states enforcing it in different ways. If there’s a ruling going the other way saying that Congress needs to legislate before a candidate can be disqualified, “that essentially makes the system defunct,” Katz said.

Thorny Questions

And such a ruling would shield the justices from having to weigh more politically tricky questions like, whether Trump is an insurrectionist.

The question there is whether Trump’s actions on Jan. 6 amount to an “insurrection or rebellion” against the United States.

In particular, Section 3 of the 14th Amendment says that certain people who “engaged in insurrection or rebellion” are barred from holding future public office.

Democrats have been quick to say it applies to Trump. In a post on X, the social media site formerly known as Twitter, Rep. Bill Pascrell (D-N.J.) said “the 14th Amendment is crystal clear: anyone who participates in insurrection is permanently barred from public office. Donald trump incited a violent riot to overthrow American democracy. Of course he should be banned from the presidency forever.”

But Charles said a ruling from the court that the leading GOP candidate for president is an insurrectionist is likely undesirable for many on the court, particularly given that Trump faces criminal charges related to Jan. 6 and has previously been impeached, but acquitted, by Congress for the same actions.

Going Along

Katz noted that the Colorado Supreme Court’s opinion sets up other issues that would potentially prevent the justices from reaching the merits, like whether the court can’t hear the matter under the so-called political question doctrine or if Trump is an officer of the United States subject to the constitutional ban.

Regardless, Kreis said the case is another the court may have to grapple with involving Trump and Jan. 6. It has already agreed to hear a case from a Jan. 6 defendant that challenges what it means to corruptly obstruct a governmental proceeding. The justices also have been asked to weigh in on whether Trump is immune from criminal prosecution.

“It might be the most consequential term since the Reconstruction Era in fundamentally deciding what it means to be a democracy,” Kreis said.

“I’m sure there will be some justices, particularly the Chief Justice, who will want to rally as much of a majority as they can in order to perhaps save face in some respects,” he said.

But with differing personalities on the bench, Kreis said that’s going to be hard.

“I don’t think Samuel Alito is going to be overly eager to get along for the sake of getting along,” he said.