Supreme Court Deliberations on Trump's Eligibility: What's at Stake?

The US Supreme Court is currently grappling with an election case of unprecedented significance that will impact Donald Trump's chances of returning to the White House and shape public perception of an increasingly contentious court. The latest controversy from Colorado comes at a time when the nine justices are under heightened scrutiny and the nation is more divided than it was in 2000, during the Bush v. Gore case that put the court at the center of a presidential election battle.

The handling of the dispute over Trump's disqualification from the Colorado ballot by the justices - with initial actions possibly taking place on Friday - has the potential to either heighten the existing chaos or ultimately provide an opportunity to restore confidence in democratic norms as the 2024 elections loom.

The Republican Presidential candidate and former U.S. President, Donald Trump, applauds during a campaign rally at the Reno-Sparks Convention Center in Reno, Nevada on December 17, 2023.

Voters in Illinois and Massachusetts are pushing to prevent Trump from appearing on the 2024 ballot. Chief Justice John Roberts and the other eight justices are scheduled to convene privately on Friday morning to discuss several pending cases, one of which is whether the former president should be disqualified from holding future office due to his involvement in the January 6, 2021, insurrection at the US Capitol. A preliminary decision on the matter could be announced within hours on Friday, or the justices may choose to delay their decision for a few days. All parties involved have stressed the pressing nature of the issue.

Trump's recent legal filing exuded his characteristic boldness and unyielding rejection of the 2020 presidential election results, which declared Joe Biden as the new president. His lawyers emphasized Trump's significant voter support and cited his belief that the protests in Portland, Oregon in 2020 exemplified his assertion that the events of January 6th were not an "insurrection."

The United States has a history of political protests that have turned violent, including the targeting of the federal courthouse in Portland, Oregon in the summer of 2020. The protestors repeatedly assaulted federal officers and set fire to the courthouse. In the context of violent American political protests, January 6 was not considered an insurrection, and the filing claims there is no justification for invoking section 3 of the 14th Amendment. The Colorado Supreme Court decision Trump is appealing disqualifies him from state ballots, and the state voters challenging Trump assert that the events of January 6 constituted an insurrection against the Constitution.

Lower court judges have found that Trump incited violence when he implored allies on January 6 to "fight like hell" to "take back our country."

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Ex-Trump lawyer on why he thinks Colorado ballot appeal was delayed

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In his filing to the justices, Trump argued that his only clear instructions on January 6 were for peaceful protests. His legal team also included a copy of Trump's speech on the Ellipse that day as evidence.

Trump and others involved in the new paired controversies are urging the justices to promptly resolve the unprecedented dispute. Norma Anderson, a former Republican Colorado legislative leader, and five other GOP voters want the case decided by February 11 before a scheduled February 12 mailing of primary ballots in Colorado. On the other hand, the Colorado Republican Committee, supporting Trump's interests, has requested the justices to rule by at least March 5, coinciding with Super Tuesday when more than a dozen other states hold their primaries.

Trumps lawyers emphasized the urgency of the situation, stating that the Colorado Supreme Court decision disqualifying him "would unconstitutionally disenfranchise millions of voters in Colorado and likely be used as a template to disenfranchise tens of millions of voters nationwide." They did not provide a specific timetable for resolution. In a similar situation, the Maine secretary of state, Shenna Bellows, ruled in December that Trump should not be on the ballot. Trump has appealed her decision in Maine state courts and the case could potentially reach the US Supreme Court.

Challenges against Trump were also filed Thursday in Illinois and Massachusetts.

What the court faces

In recent years, the Supreme Court's influence has waned due to the overturning of long-standing precedents, including the landmark 1973 Roe v. Wade decision which legalized abortion nationwide and granted women the constitutional right to terminate a pregnancy. Additionally, controversy has arisen over the off-bench conduct of some justices, particularly regarding extravagant travel and receiving gifts from conservative donors, as evidenced in investigative news reports involving Justice Clarence Thomas.

The 2023-24 session became even more challenging for the justices, as they were faced with new cases testing Second Amendment gun rights, government regulatory power over consumer and environmental activities, and the Food and Drug Administration's authority over the abortion pill mifepristone. This election year has heightened the stakes.

The current Trump ballot controversy exceeds anything from 2020 and brings to mind the 2000 decision by the justices over Florida's decisive electors. In a 5-4 vote, the justices ended recounts and awarded the presidency to then-Gov. George W. Bush over then-Vice President Al Gore. The high court stated in 2000 that the decision was limited to that specific case, citing unconstitutional variation in how contested ballots were assessed across Florida counties.

The current case could have significant implications for future presidential candidates or anyone who previously held office and may be accused of insurrection. The disputed section states that no person who has previously taken an oath to support the Constitution of the United States shall hold office under the United States if they have engaged in insurrection, rebellion, or provided aid to its enemies.

Key legal questions include whether Congress needs to pass legislation allowing a state to enforce the provision, and if a president is included in the list of officials subject to disqualification. In a ruling, a trial judge in Colorado concluded that the disqualification provision did not apply to the presidency and therefore, not to Trump. (The Colorado Supreme Court later overturned the trial judge's decision.)

The justices will need to first establish whether a challenge to a presidential candidate's qualifications falls within the purview of the judiciary or is deemed a "political question." Depending on the extent to which they investigate the events of January 6, they may also need to determine if Trump's actions directly provoked the Capitol attack and hence qualify as "insurrection."

Additional unresolved issues may include whether a political party's right to choose its presidential primary candidates is protected under the First Amendment's right of association, as questioned by the Colorado Republican Committee.

Trumps' petition raises a potential constitutional problem, contending that the Colorado Supreme Court overstepped its bounds by violating the Electors Clause of the Constitution.

The justices will probably start by honing in on particular legal issues, giving an initial indication of the potential scope of their ruling once they take up the case.

The Supreme Court is expected to take on a significant role in the 2024 election drama, as public scrutiny increases. More litigation is likely to emerge from lower courts in the months ahead, making the Court's involvement crucial. In late December, the justices deferred involvement in Trump's separate litigation, which stems from his claim of immunity from criminal prosecution for election subversion in the 2020 presidential contest.

The case is likely to be reviewed by the justices, who will ultimately determine whether a former president is protected from criminal prosecution, as argued by Trump. Similar to the 14th Amendment insurrection controversy, the question of immunity has never been resolved. The final decision on both matters will be made by the majority of the Supreme Court. In their concluding submission for the current round of cases before the justices, Colorado voters challenging Trump's candidacy encouraged the court to act promptly and to avoid any standard that would absolve the individual most responsible for the violent attack on the Capitol.