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      Barring Trump From the Ballot Would Be a Mistake

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      When Donald Trump appeals the Colorado decision disqualifying him from the ballot in that state’s Republican primary, the Supreme Court should overturn the ruling unanimously.Like many of my fellow liberals, I would love to live in a country where Americans had never elected Mr. Trump — let alone sided with him by the millions in his claims that he won an election he lost, and that he did nothing wrong afterward. But nobody lives in that America. For all the power the institution has arrogated, the Supreme Court cannot bring that fantasy into being. To bar Mr. Trump from the ballot now would be the wrong way to show him to the exits of the political system, after all these years of strife.Some aspects of American election law are perfectly clear — like the rule that prohibits candidates from becoming president before they turn 35 — but many others are invitations to judges to resolve uncertainty as they see fit, based in part on their own politics. Take Section 3 of the 14th Amendment, which blocks insurrectionists from running for office, a provision originally aimed at former Confederates in the wake of the Civil War. There may well be some instances in which the very survival of a democratic regime is at stake if noxious candidates or parties are not banned, as in West Germany after World War II. But in this case, what Section 3 requires is far from straightforward. Keeping Mr. Trump off the ballot could put democracy at more risk rather than less.Part of the danger lies in the fact that what actually happened on Jan. 6 — and especially Mr. Trump’s exact role beyond months of election denial and entreaties to government officials to side with him — is still too broadly contested. The Colorado court deferred to a lower court on the facts, but it was a bench trial, meaning that no jury ever assessed what happened, and that many Americans still believe Mr. Trump did nothing wrong. A Supreme Court that affirms the Colorado ruling would have to succeed in constructing a consensual narrative where others — including armies of journalists, the Jan. 6 commission and recent indictments — have failed.The Supreme Court has been asked to weigh in on the fate of presidencies before, and its finer moments in this regard have been when it was a force for stability and reflected the will and interests of voters. Almost 50 years ago, the court faced a choice to end a presidency as it deliberated on Richard Nixon’s high crimes and misdemeanors. But by the time the Supreme Court acted in 1974, a special prosecutor, Leon Jaworski, had already won indictments of Nixon’s henchmen and named the president himself before a grand jury as an unindicted co-conspirator. Public opinion was with Jaworski; the American people agreed that the tapes Nixon was trying to shield from prosecutors were material evidence, and elites in both political parties had reached the same conclusion. In deciding against Nixon, the Supreme Court was only reaffirming the political consensus.As the constitutional law professor Josh Chafetz has observed, even United States v. Nixon was suffused with a rhetoric of judicial aggrandizement. But if the Supreme Court were to exclude Mr. Trump from the ballot, seconding the Colorado court on each legal nicety, when so many people still disagree on the facts, it would have disastrous consequences.For one thing, it would strengthen the hand of a Supreme Court that liberals have rightly complained grabs too much power too routinely. Joe Biden came into office calling for a re-examination of whether the Supreme Court needs reform, and there would be considerable irony if he were re-elected after that very body was seen by millions to pre-empt a democratic choice.Worse, it is not obvious how many would accept a Supreme Court decision that erased Mr. Trump’s name from every ballot in the land. Liberals with bad memories of Bush v. Gore, which threw an election to one candidate rather than counting votes, have often regretted accepting that ruling as supinely as they did. And rejecting Mr. Trump’s candidacy could well invite a repeat of the kind of violence that led to the prohibition on insurrectionists in public life in the first place. The purpose of Section 3 was to stabilize the country after a civil war, not to cause another one.As it unfolds, the effort to disqualify Mr. Trump could make him more popular than ever. As harsh experience since 2016 has taught, legalistic maneuvers haven’t hurt him in the polls. And Democrats do nothing to increase their popularity by setting out to “save democracy” when it looks — if their legal basis for proceeding is too flimsy — as if they are afraid of practicing it. That the approval ratings of the Democratic standard-bearer, Mr. Biden, have cratered as prosecutions of Mr. Trump and now this Colorado ruling have accumulated indicates that trying again is a mistake, both of principle and of strategy.Perhaps the worst outcome of all would be for the Supreme Court to split on ideological lines, as it did in Bush v. Gore, hardly its finest hour. Justices have fretted about the damage to their “legitimacy” when their decisions look like political choices. They often are, as so many recent cases have revealed, but when the stakes are this high, the best political choice for the justices is to avoid final judgment on contested matters of fact and law and to let the people decide.In the Nixon era, the justices were shrewd enough to stand together in delivering their decision: It was handed down 8-0, with one recusal. In our moment, the Supreme Court must do the same.This will require considerable diplomacy from Chief Justice John Roberts, and it will define his stewardship as profoundly as cases such as Dobbs v. Jackson Women’s Health Organization, in which his effort to herd his colleagues into consensus failed. In this situation, unlike that one, it will require him to convince his liberal colleagues who might otherwise dissent. For their part, they ought to be able to anticipate the high and unpredictable costs of presuming that judges can save a nation on the brink of breakdown.The truth is that this country has to be allowed to save itself. The Supreme Court must act, but only to place the burden on Mr. Trump’s political opponents to make their case in the political arena. Not just to criticize him for his turpitude, but to argue that their own policies benefit the disaffected voters who side with a charlatan again and again.Samuel Moyn teaches law and history at Yale.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Instagram, TikTok, X and Threads. More

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      New Trump Cases Shadowed by Rocky Relationship With Supreme Court

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      Though he appointed three justices, his administration had the worst track record before the justices since at least the 1930s.“I’m not happy with the Supreme Court,” President Donald J. Trump said on Jan. 6, 2021. “They love to rule against me.”His assessment of the court, in a speech delivered outside the White House urging his supporters to march on the Capitol, had a substantial element of truth in it.Other parts of the speech were laced with fury and lies, and the Colorado Supreme Court cited some of those passages on Tuesday as evidence that Mr. Trump has engaged in insurrection and was ineligible to hold office again.But Mr. Trump’s reflections on the U.S. Supreme Court in the speech, freighted with grievance and accusations of disloyalty, captured not only his perspective but also an inescapable reality. A fundamentally conservative court, with a six-justice majority of Republican appointees that includes three named by Mr. Trump himself, has not been particularly receptive to his arguments.Indeed, the Trump administration had the worst Supreme Court record of any since at least the Roosevelt administration, according to data developed by Lee Epstein and Rebecca L. Brown, law professors at the University of Southern California, for an article in Presidential Studies Quarterly.“Whether Trump’s poor performance speaks to the court’s view of him and his administration or to the justices’ increasing willingness to check executive authority, we can’t say,” the two professors wrote in an email. “Either way, though, the data suggest a bumpy road for Trump in cases implicating presidential power.”Now another series of Trump cases are at the court or on its threshold: one on whether he enjoys absolute immunity from prosecution, another on the viability of a central charge in the federal election-interference case and the third, from Colorado, on whether he was barred from another term under the 14th Amendment.The cases pose distinct legal questions, but earlier decisions suggest they could divide the court’s conservative wing along a surprising fault line: Mr. Trump’s appointees have been less likely to vote for him in some politically charged cases than Justice Clarence Thomas, who was appointed by the first President Bush, and Justice Samuel A. Alito Jr., who was appointed by the second one.In his speech at the Ellipse on Jan. 6, Mr. Trump spoke ruefully about his three appointees: Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, suggesting that they had betrayed him to establish their independence.“I picked three people,” he said. “I fought like hell for them.”In a speech at the Ellipse on Jan. 6, 2021, Mr. Trump spoke ruefully about his three appointees and suggested that they had betrayed him to establish their independence.Pete Marovich for The New York TimesMr. Trump said his nominees had abandoned him, blaming his losses on the justices’ eagerness to participate in Washington social life and to assert their independence from the charge that “they’re my puppets.”He added: “And now the only way they can get out of that because they hate that it’s not good in the social circuit. And the only way they get out is to rule against Trump. So let’s rule against Trump. And they do that.”Mr. Trump has criticized Chief Justice John G. Roberts Jr. on similar grounds. When the chief justice cast the decisive vote to save the Affordable Care Act in 2012, Mr. Trump wrote on Twitter that “I guess @JusticeRoberts wanted to be a part of Georgetown society more than anyone knew,” citing a fake handle. During his presidential campaign, Mr. Trump called the chief justice “an absolute disaster.”When he spoke on Jan. 6, Mr. Trump was probably thinking of the stinging loss the Supreme Court had just handed him weeks before, rejecting a lawsuit by Texas that had asked the court to throw out the election results in four battleground states.Before the ruling, Mr. Trump said he expected to prevail in the Supreme Court, after rushing Justice Barrett onto the court in October 2020 in part in the hope that she would vote in Mr. Trump’s favor in election disputes.“I think this will end up in the Supreme Court,” Mr. Trump said of the election a few days after Justice Ruth Bader Ginsburg’s death that September. “And I think it’s very important that we have nine justices.”After the ruling, Mr. Trump weighed in on Twitter. “The Supreme Court really let us down,” he said. “No Wisdom, No Courage!”The ruling in the Texas case was not quite unanimous. Justice Alito, joined by Justice Thomas, issued a brief statement on a technical point.Those same two justices were the only dissenters in a pair of cases in 2020 on access to Mr. Trump’s tax and business records, which had been sought by a New York prosecutor and a House committee.The general trend continued after Mr. Trump left office. In 2022, the court refused to block the release of White House records concerning the Jan. 6 attack on the Capitol, effectively rejecting Mr. Trump’s claim of executive privilege. The court’s order let stand an appeals court ruling that Mr. Trump’s desire to maintain the confidentiality of internal White House communications was outweighed by the need for a full accounting of the attack and the disruption of the certification of the 2020 electoral count.Only Justice Thomas noted a dissent. His participation in the case, despite his wife Virginia Thomas’s own efforts to overturn the election, drew harsh criticism.Mr. Trump’s rocky record at the court offers only hints about how the justices will approach the cases already before them and on the horizon. His claim of absolute immunity appears vulnerable, based on other decisions from the court on the scope of presidential power.The case examining one of the federal statutes relied on by the special counsel in the federal election-interference case, which makes it a crime to corruptly obstruct an official proceeding, does not directly involve Mr. Trump, though the court’s ruling could undermine two of the charges against him.Mr. Trump’s rocky record at the court offers only hints about how the justices will approach the cases already before them and on the horizon.Erin Schaff/The New York TimesThe justices have been skeptical of broad interpretations of federal criminal laws, and the arguments in the case will doubtless involve close parsing of the statute’s text.The case that is hardest to assess is the one from Colorado, involving as it does a host of novel questions about the meaning of an almost entirely untested clause of the 14th Amendment, one that could bar Mr. Trump from the presidency. The case is not yet at the Supreme Court, but it is almost certain to arrive in the coming days.Guy-Uriel E. Charles, a law professor at Harvard, said the justices would have to act.“The Supreme Court is a contested entity, but it is the only institution that can weigh in and try to address this problem, which needs a national resolution,” he said. “There has been some loss of faith in the court, but even people who are deeply antagonistic to it believe it needs to step in.” More

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      How Could the Supreme Court Respond to Colorado?

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      David Firestone and Donald Trump engaged in insurrection and that disqualifies him from appearing on the 2024 ballot in Colorado, the state’s Supreme Court ruled Tuesday.In this audio conversation with the Opinion editor David Firestone, the editorial board writer Jesse Wegman says he believes that the United States Supreme Court will eventually take this case. But Wegman is less certain than he once was that “the court is just going to strike this down.”Illustration by The New York Times; Photograph by Scott Morgan/ReutersThe Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, X (@NYTOpinion) and Instagram.This episode of “The Opinions” was produced by Jillian Weinberger. It was edited by Kaari Pitkin with help from Phoebe Lett. Mixing by Isaac Jones and Carole Sabouraud. Original music by Carole Sabouraud. Fact-checking by Marge Mary Locker and Kate Sinclair. Audience strategy by Kristina Samulewski and Shannon Busta. More

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      Democrats Keep Hoping It’s Curtains for Trump. He’s Still Center Stage.

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      As Donald Trump faces a new threat to his political future, this time over the question of ballot eligibility, Democrats again find themselves looking toward American institutions to stop him.For as long as Donald J. Trump has dominated Republican politics, many Democrats have pined for a magical cure-all to rid them of his presence.There was the Mueller investigation into Mr. Trump’s 2016 campaign and its ties to Russia, which began four months into his presidency. Then came the first impeachment. Then, after Mr. Trump lost the 2020 election and his supporters stormed the Capitol, the second impeachment.Each time, Democrats entertained visions of Mr. Trump meeting his political downfall. Each time, they were disappointed.This year, liberal hopes have sprung anew, with federal and state prosecutors bringing 91 felony charges against Mr. Trump in four criminal cases.Then, on Tuesday, came what appeared to be an out-of-the-blue act of deliverance from Denver. Colorado’s top court ruled that Mr. Trump should be disqualified from holding office on the grounds that he incited an insurrection on Jan. 6, 2021, a decision that is likely to end up at the U.S. Supreme Court.Once again, Democrats find themselves looking toward American institutions to stop Mr. Trump, whom they view as a mortal threat to democracy. For many, it may be more pleasant to think about a judicial endgame that stops Mr. Trump than envisioning the slog of next year’s likely rematch against President Biden.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More

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      What Is the 14th Amendment, and How Could It Disqualify Trump in Colorado?

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      A ruling that Donald Trump is ineligible for the presidency will test the court’s methodological values.The ruling by Colorado’s Supreme Court that former President Donald J. Trump is ineligible to be president again because he engaged in an insurrection has cast a spotlight on the basis for the decision: the Constitution’s 14th Amendment, which includes a clause disqualifying people who violated their oaths of office from holding government positions in the future.Mr. Trump has vowed to appeal to the Supreme Court. It is dominated by a supermajority of six justices who emerged from the conservative legal movement, which values methods of interpretation known as textualism and originalism. Under those precepts, judges should interpret the Constitution based on its text and publicly understood meaning when adopted, over factors like evolving social values, political consequences or an assessment of the intended purpose of the provision.Some of the major questions raised by the ruling — like whether it would need an act of Congress to take effect as well as the power of a state court to decide whether a federal candidate is qualified — do not turn on interpreting the clause’s text. But here is where textualism and originalism may come into play.What is the disqualification clause?The 14th Amendment was adopted in 1868 as part of the post-Civil War Reconstruction Era. To deal with the problem of former Confederates holding positions of government power, its third section disqualifies former government officials who have betrayed their oaths from holding office.Specifically, the clause says that people are ineligible to hold any federal or state office if they took an oath to uphold the Constitution in one of various government roles, including as an “officer of the United States,” and then engaged in insurrection or rebellion against the United States or aided its enemies. The clause also says a supermajority vote in Congress could waive such a penalty.According to a Congressional Research Service report, a criminal conviction was not seen as necessary: federal prosecutors brought civil actions to oust officials who were former Confederates, and Congress refused to seat certain members under the clause. Congress passed amnesty laws in 1872 and 1898, lifting the penalties on former Confederates.Is the president an ‘officer of the United States’?Mr. Trump is unique among American presidents: He has never held any other public office and only swore an oath to the Constitution as president. That raises the question of whether the disqualification clause covers the oath he took. While as a matter of ordinary speech, a president is clearly an “officer of the United States,” there is a dispute over whether it excludes presidents as a constitutional term of art.In 2021, two conservative legal scholars, Josh Blackman of the South Texas College of Law Houston and Seth Barrett Tillman of the National University of Ireland, Maynooth, published a law review article about the clause arguing on textualist and originalist grounds that a president does not count as an officer of the United States. Among other issues, they focused on language about “officers” in the original Constitution as ratified in 1788 — including language about oaths that can be read as distinguishing appointed executive branch officers from presidents, who are elected.Last summer, two other conservative legal scholars — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — posted a law review article that invoked similar methodology but concluded that Mr. Trump is ineligible for the presidency. “Essentially all the evidence concerning the original textual meaning” of the clause pointed in that direction, the scholars argued. Among other things, they wrote that phrases like “officer of the United States” must be read “sensibly, naturally and in context, without artifice” that would render it a “‘secret code’ loaded with hidden meanings.”In an earlier phase of the Colorado case, a lower court judge had ruled that the clause does not cover presidents and so rejected removing Mr. Trump from the ballot. In finding the opposite, the Colorado Supreme Court also cited evidence of people in the immediate post-Civil War era discussing the president as an officer of the government, while focusing on ordinary use of the term rather than treating it as a term of art.Were the events of Jan. 6 an insurrection?The question of whether “insurrection” aptly describes the events of Jan. 6 is another topic of debate, although it was not a major disagreement among judges in Colorado.Some critics of Mr. Trump use that word to describe how a pro-Trump mob overran the Capitol in an attempt to block Congress from certifying President Biden’s Electoral College victory. Mr. Trump’s allies — as well as some people who are otherwise his critics — argue that “insurrection” is hyperbole.The Constitution does not define the word. While it was written after the South’s armed rebellion against the Union, its text does not limit its scope to participation in events of a comparable scale. A federal statute allowing presidents to use troops to suppress insurrections discusses “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States” that “make it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings.”The Colorado Supreme Court’s four-justice majority found that the events were an insurrection, and that issue was not the basis of any of the three dissents. The lower-court judge who had rejected the lawsuit on the grounds that the president is not an “officer of the United States” had nevertheless found that the events of Jan. 6 constituted an insurrection.Has Trump ‘engaged’ in an insurrection?Even assuming the events of Jan. 6 were an insurrection, there remains the question of whether the actions of Mr. Trump — who did not himself storm Congress — amounted to engaging in an insurrection against the government or giving aid and comfort to its enemies.The House committee that investigated Mr. Trump’s attempt to subvert the 2020 election concluded that the events met the standard of an insurrection, and asked the Justice Department to consider charging him under a law that makes it a crime to incite, assist, or give “aid or comfort” to an insurrection.The panel cited his summoning of supporters to Washington on Jan. 6, the fiery speech he delivered to them as they morphed into a mob, how he refused for hours to take steps to call off the rioters despite being implored by aides to do so, and an inflammatory tweet he sent about Mr. Pence during the violence.Still, the special counsel, Jack Smith, did not include inciting an insurrection in the charges he brought against Mr. Trump, and to date Mr. Trump has not been convicted of any crime in connection with his attempts to stay in office for a second term despite losing the election. Mr. Trump has argued that all his actions were protected by the Constitution, including the First Amendment.What else have courts said about the clause and Jan. 6?There has never before been a presidential candidate who is accused in court of being an oath-breaking insurrectionist, so there is no Supreme Court precedent solidly on point. But other politicians have faced similar legal challenges in connection with the events of Jan. 6, 2021.In early 2022, opponents of Representative Madison Cawthorn, a Trump-aligned Republican of North Carolina, filed a lawsuit to keep him from running for re-election based on what they described as his role in encouraging what became the Jan. 6 riot. A Federal District Court judge dismissed the case, ruling that the clause no longer had force after the 1872 amnesty law. But an appeals court overturned that ruling, holding that the amnesty law was only retrospective and the prohibition still applied in general. Mr. Cawthorn lost his primary election, so the case was rendered moot without resolving other issues.Opponents of Representative Marjorie Taylor Greene, a Trump-aligned Republican of Georgia, similarly tried to keep her from running for re-election in 2022. A state judge rejected that challenge, finding no persuasive evidence that she “took any action — direct physical efforts, contribution of personal services or capital, issuance of directives or marching orders, transmissions of intelligence, or even statements of encouragement — in furtherance” of what turned into the Jan. 6 riot after she first took the oath on Jan. 3, 2021.And in September 2022, a state judge in New Mexico ordered Couy Griffin, a commissioner in New Mexico’s Otero County, removed from office under the clause. Mr. Griffin had been convicted of trespassing for breaching the Capitol as part of the mob. The judge ruled that the events surrounding the Jan. 6 riot counted as an insurrection and that Mr. Griffin’s role in the matter rendered him “constitutionally disqualified from serving.” More

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      Colorado Supreme Court Was Narrowly Split on Barring Trump From Ballot

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      The 4-3 decision was harshly criticized by Trump supporters, who called it undemocratic. But some observers say the court is notably nonpartisan. The Colorado Supreme Court, which barred former President Donald J. Trump from the state’s primary ballot, is composed of seven justices who were all appointed by Democratic governors.Justices on the court serve 10-year terms, and Democrats have held the governor’s office for the last 16 years, so all of the current justices were appointed by that party, with five appointed by one man: John Hickenlooper, who was governor from 2011 to 2019 and is now one of the state’s U.S. senators.Still, the chief justice, Brian Boatright, is a Republican, while three justices are Democrats and three are listed in voter registration records as “unaffiliated” with a party. And the court was not of one mind on whether Mr. Trump should appear on the ballot. The decision was 4-3, with the court ruling that the 14th Amendment forbade Mr. Trump from holding office because he had “engaged in insurrection” on Jan. 6, 2021, when his supporters overran the Capitol. (Of the four who voted with the majority, two are registered Democrats and two are not registered with a party.)The decision was harshly criticized by supporters of Mr. Trump, who said that keeping him off the ballot was undemocratic. The head of Colorado’s Republican Party, Dave Williams, said “out-of-control radicals” in Colorado “would rather spit on our Constitution than let the people decide which candidates should represent them in a free and fair election.”But some observers of the court say that it is notably nonpartisan, in part because of how the justices are named. The governor must choose from a pool of nominees recommended by a bipartisan commission. The majority of the members on that commission are not lawyers. Still, most are chosen by the governor.The decision was harshly criticized by supporters of Mr. Trump, who said that keeping him off the ballot was undemocratic.Max Whittaker for The New York Times“It’s perceived to be way less political than the U.S. Supreme Court, and I think it’s true that it’s way less political,” said Chris Jackson, a lawyer in Denver whose practice includes election law. “There aren’t really conservative and liberal justices in the way that we describe the U.S. Supreme Court justices.”The decision on Trump on Tuesday was not the first time the court has removed a political candidate from the ballot. In 2020, it ruled that a Democratic U.S. Senate candidate, Michelle Ferrigno Warren, could not appear on the primary ballot because she had not collected enough signatures from voters. A lower court had been more lenient, citing the Covid-19 pandemic, but the state’s highest court disagreed.Two years earlier, in 2018, the court removed a Republican candidate from a ballot. It found that Representative Doug Lamborn, a longtime congressman from Colorado Springs, had not collected enough valid voter signatures to be on the ballot. In that case, however, a federal court disagreed and eventually reinstated Mr. Lamborn, who won the election.Mr. Lamborn said in a statement that he hoped Mr. Trump would have similar success in the U.S. Supreme Court.Brian Boatright, the chief justice, in December. Pool photo by David Zalubowski“This wrongful decision was made by the same court that unconstitutionally removed my name from the ballot years ago & had to be corrected by a federal court,” Mr. Lamborn wrote on the social media platform X. Like the U.S. Supreme Court, the Colorado Supreme Court can choose whether to hear cases that are appealed to it, and, in some of the state’s biggest recent cases, the Colorado high court has declined. That was true in two cases in which the U.S. Supreme Court eventually weighed in: Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which that court sided in 2018 with a baker who had refused to make a wedding cake for a gay couple, and a case this year, Counterman v. Colorado, in which the high court said that the First Amendment put limits on laws banning online threats.Doug Spencer, a law professor at the University of Colorado, said the state’s high court appeared, in its Trump decision, to try to walk a tight line. It had ruled to remove Mr. Trump from the ballot but put a pause on its own ruling. If the case is appealed to the U.S. Supreme Court, as is expected, then Mr. Trump’s name would, under the state court’s order, remain on the ballot until the Supreme Court decides the case. But the Colorado secretary of state said on Tuesday that she would follow whatever court order is in place on Jan. 5, when the state must certify ballots for the primary election.In staying its own decision until the Supreme Court weighs in, Professor Spencer said, the state court had “teed it up in just the right way” to be decided by the nation’s top court.He added: “They’re very thorough in terms of explaining themselves, whether or not you agree with them.”Susan C. Beachy More

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      Trump Cases Crashing Into Supreme Court Could Reshape 2024 Election

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      The ruling that Donald Trump is not eligible for the ballot in Colorado is the latest election-related issue likely to land before the justices. The implications for 2024 could be profound.It has been obvious for months that politics and the law were going to bump into one another in the 2024 campaign, given the double role that former President Donald J. Trump has been playing as a criminal defendant and leading Republican candidate.But in a way that few expected, that awkward bump has turned into a head-on collision. It now seems clear that the courts — especially the Supreme Court — could dramatically shape the contours of the election.The nine justices have already agreed to review the scope of an obstruction statute central to the federal indictment accusing Mr. Trump of plotting to overturn the 2020 election. And they could soon become entangled in both his efforts to dismiss those charges with sweeping claims of executive immunity and in a bid to rid himself of a gag order restricting his attacks on Jack Smith, the special counsel in charge of the case.The court could also be called upon to weigh in on a series of civil lawsuits seeking to hold Mr. Trump accountable for the violence at the Capitol on Jan. 6, 2021.And in the latest turn of events, the justices now seem poised to decide a novel and momentous legal question: whether Mr. Trump should be disqualified from state ballots for engaging in an insurrection on Jan. 6 in violation of a Reconstruction-era constitutional amendment.Taking up just one of these cases would place the Supreme Court — with a conservative majority bolstered by three Trump appointees — in a particular political spotlight that it has not felt in the 23 years since it decided Bush v. Gore and cemented the winner of the 2000 presidential race.But a number of the issues the court is now confronting could drastically affect the timing of the proceedings against Mr. Trump, the scope of the charges he should face or his status as a candidate, with potentially profound effects on his chances of winning the election. And the justices could easily become ensnared in several of the questions simultaneously.“In this cycle, the Supreme Court is likely to play an even larger role than in Bush v. Gore,” said David Becker, executive director of the Center for Election Innovation and Research, a nonpartisan group dedicated to improving election administration.“It’s not just the issue of whether or not Donald Trump engaged in insurrection, which would disqualify him from holding the presidency under the 14th Amendment,” Mr. Becker said, “but also issues related to presidential immunity and criminal proceedings in general.”All of this arrives at a particularly vulnerable moment for the court. In the wake of its decisions on contentious issues like abortion rights and affirmative action, critics have assailed it for being guided by an overt political ideology.At the same time, some of the justices have come under withering personal scrutiny for their finances and links to wealthy backers. And given that Mr. Trump has at times expressed surprise that the justices he put on the bench have not been more attuned to his interests, any decisions by the court that favor him are sure to draw intense criticism.“Most of the justices would surely prefer the court to keep a low profile in the 2024 presidential election,” said Richard H. Pildes, a law professor at New York University.“In a highly polarized, social media-fueled political culture,” he said, “the justices know that nearly half the country is likely to view the court as having acted illegitimately if the court rules against their preferred candidate.”But while the court’s current majority has certainly favored any number of staunchly conservative policies, it has shown less of an appetite for supporting Mr. Trump’s attempts to bend the powers of the presidency to his benefit or to interfere with the mechanics of the democratic process.The justices largely ignored the slew of lawsuits that he and his allies filed in lower courts across the country three years ago seeking to overturn the last election. They also rejected out of hand a last-minute petition from the state of Texas to toss out the election results in four key battleground states that Mr. Trump had lost.None of this, of course, is a guarantee of how the court might act on the issues it is facing this time.Even a decision by the Supreme Court to move slowly in considering the issues heading its way could have major ramifications, especially the question of whether Mr. Trump is immune from prosecution for actions he took as president. If that issue gets tied up in the courts for months, it could make it harder to schedule his trial on charges of trying to overturn the 2020 election before the general election season starting in the summer — and could even delay it until after Election Day.In fact, there are so many moving parts in the overlapping cases that Mr. Trump is facing that it is all but impossible to predict which issues might get taken up, how the justices will rule on the questions they consider and what effects their decisions might have as they flow downstream to the lower courts that are handling the former president’s four criminal cases and his many civil proceedings.It is important to remember something else: Mr. Trump is interested in more than winning arguments in court. From the start, he and his lawyers have pursued a parallel strategy of trying to delay his cases for as long as possible — ideally until after the election is decided.If he can succeed in such a delay and win the race, he would have the power to simply order the federal charges he is facing to be dropped. Regaining the White House would also complicate the efforts of local prosecutors to hold him accountable for crimes.The courts have shown that they, too, are aware that timing is an issue in Mr. Trump’s cases. Judges are normally loath to set the pace of proceedings based on outside pressures, but in the cases involving Mr. Trump the courts have found themselves in an unusual bind.Setting too aggressive a schedule could impinge on the rights of the defendant to have sufficient time to prepare for a complex trial. But to move too slowly would be to risk depriving voters of the knowledge they would glean from a trial before Election Day and give Mr. Trump, were he to win the election, the chance to kill the prosecutions or put them on hold for years.“It’s all extremely awkward,” said Alan Rozenshtein, a former Justice Department official who teaches at the University of Minnesota Law School.Having the courts so enmeshed in Mr. Trump’s legal and political future has opened up the question of just how much ordinary people, not judges, will get to decide what happens at the polls next year. It has also left unresolved the degree to which judicial decisions will affect whether voters are able to hear the evidence that prosecutors have painstakingly collected about Mr. Trump’s alleged crimes before they render a decision about whether to re-elect him.Some election law specialists said the courts should generally defer to voters and not interfere in the choices they can make.“My view is that Trump is a political problem, and the appropriate response is politics,” said Tabatha Abu El-Haj, a law professor at Drexel University.But Edward B. Foley, a law professor at Ohio State University, said that elections must be governed by legal principles.“It’s commonplace to think that voters, not courts, should determine who’s elected president,” he said. “But it’s also essential to remember that the law, including court rulings, structures the electoral choices voters face when they cast their ballot.”Adam Liptak More

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      in Elections

      Trump Asks Supreme Court to Put Off Hearing Case on Immunity Claim

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      The former president urged the justices to move slowly in his federal election interference case, an apparent attempt to delay the trial, set for March.Former President Donald J. Trump urged the Supreme Court on Wednesday to put off a decision on a crucial question in his federal prosecution on charges of plotting to overturn the 2020 election: whether he has “absolute immunity” for actions he took as president.The question, Mr. Trump’s brief said, should be “resolved in a cautious, deliberative manner — not at breakneck speed.” He urged the justices not to “rush to decide the issues with reckless abandon.”The request appeared to be part of Mr. Trump’s general strategy of trying to delay the trial in the case, which is scheduled to start on March 4. That date, Mr. Trump’s lawyers wrote, “has no talismanic significance.”Last week, Jack Smith, the special counsel, asked the Supreme Court to bypass a federal appeals court and agree to hear the immunity question on a quick schedule. Mr. Trump opposed that request on Wednesday, saying the importance of the matter warranted careful and unhurried deliberation by the appeals court before the justices decide whether to take it up.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More