“It’s up to the Supreme Court.” These days the phrase is as much a statement of fact when it comes to a major legal issue that the justices will resolve as it is a cause for concern. After all, in the past two years alone, the conservative supermajority of justices installed by Donald Trump has upended the law on abortion, gun control, voting rights, affirmative action, executive power, and discrimination in public life.
The same group of justices is now poised to consider two major legal questions that will significantly shape — and perhaps even indirectly determine — the outcome of the 2024 presidential election. The Court’s handling of these issues will constitute a roiling, monthslong subplot of the 2024 presidential contest, one that remains, according to recent polling, a statistical dead heat between Trump and President Joe Biden and couldplausibly turn on the progress of Trump’s criminal cases before Election Day.
It is an unsettling, if not outright maddening, situation that should concern anyone who has watched the politicization and deterioration of the Court in recent years or who recalls its intervention in the 2000 election in favor of George W. Bush. The uncertainty before us is the result of two ostensibly different problems that are converging before our eyes: the emergence of a solidly conservative majority on the Supreme Court, whose decisions often align with the partisan political priorities of the Republican Party, and the Justice Department’s needless delay in moving to investigate and prosecute Trump over his effort to steal the 2020 election.
The first big issue headed to the Court concerns Trump’s eligibility to run for president again under the 14th Amendment, which, according to recent decisions from Colorado’s top court and Maine’s secretary of State, precludes Trump’s reelection bid because he engaged in an “insurrection” following his 2020 loss to Biden. A great deal of ink has been spilled in recent weeks on this question, but as a practical matter, this was always an anti-Trump pipe dream that was essentially doomed to fail at the Supreme Court, and the fundamental legal hurdles have not changed since the effort began in earnest last year.
There are plenty of ways for a majority of the justices — perhaps even including one or more of the liberals — to reject the reasoning from Colorado’s and Maine’s officials and effectively clear the way for Trump to stand for reelection. Among other possibilities, they could conclude (1) that the relevant portion of the 14th Amendment does not apply to candidates for the presidency; (2) that the provision cannot be enforced without an enabling statute from Congress that specifies the procedure for disqualification; (3) that the provision was effectively nullified by Congress in the late 1800s; or (4) that Trump did not “engage” in an “insurrection” within the meaning of the amendment. These are each independently sufficient grounds to reject the theory that Trump is ineligible to run, so he could win even if he prevailed on just one. Moreover, the justices do not all need to agree on the rationale; a majority could emerge with different justices endorsing different arguments.
Given all this, it is little surprise that most serious observers have now coalesced around a conclusion that seemed evident months ago: The challenge to Trump’s eligibility under the 14th Amendment is likely to fail at the Supreme Court. The big questions are how quickly the justices reject it, what their reasoning will be, and whether any of the liberal justices end up joining the majority.
The second major issue headed to the Court is whether Trump is immune from criminal prosecution in the Justice Department’s case alleging that he tried to steal the 2020 election. Trump claims that he is immune from prosecution in the case because although he was impeached by the House of Representatives after the siege of the U.S. Capitol, he was acquitted by the Senate; according to his lawyers, that excludes subsequent criminal charges over the same conduct. The theory is based on a logically incoherent reading of the relevant impeachment clause and is absurd on almost every conceivable level, but the Court’s handling of the dispute could delay the trial, which had been set for March, and potentially even push it past the general election depending on precisely how things unfold.
As of a few weeks ago, the Supreme Court had agreed to consider a request from special counsel Jack Smith to expedite its consideration of the issue so that the parties could proceed to trial on schedule. (The trial judge already rejected Trump’s argument in a well-reasoned opinion early last month, but the proceedings are on hold while Trump appeals his loss on this issue.) Since then, the Court has denied the Justice Department’s request to expedite hearing the appeal; the D.C. Circuit Court of Appeals has scheduled oral argument for next Tuesday.
It is possible that the appeals court could rule relatively quickly. If Trump loses at that point (as he should), he would become the one asking the Supreme Court to weigh in, and it would be up to the justices to decide whether and to what extent to expedite their ruling in order to provide sufficient time for a trial before November.
Ideally, the Court would quickly reject Trump’s claim to immunity and let the trial move forward as quickly as possible, but like the 14th Amendment challenge, this is an important issue that the Court has never considered before — and one that the American public will be following extremely closely. Moreover, even if the justices reject Trump’s broad-brush argument that he is immune from prosecution, it is possible that they could craft some sort of multifactor test for the district court to determine whether the government is improperly trying to criminalize conduct that (as Trump ridiculously claims) encompassed his official duties as president.
Ultimately, even a few months of delay in a ruling by the Court could prove extremely consequential as a political matter.
As we move deeper into the 2024 political calendar, particularly after the parties’ nominating conventions over the summer, the trial judge and even the Justice Department itself could become increasingly reluctant to hold the trial before the general election in November. At that point, one likely concern — which, for the record, I do not share — is that a weekslong trial requiring Trump’s daily attendance in Washington, D.C., and full attention would interfere with the presidential race by impeding his ability to campaign against Biden throughout the country. More generally, there would be something undeniably uncomfortable to many people about a criminal trial in which the Justice Department would be prosecuting the sitting president’s opponent in the middle of a heated and close campaign.
At the same time, according to the available polling data, most Americans want the trial to occur before November, and a conviction could swing enough voters against Trump to doom his reelection bid. There are reasons to be cautious about whether data like this can accurately predict how voters would respond in reality, but everyone involved, including the Trump campaign, appears to know that a conviction in the case could be fatal to his reelection effort, at least in theory.
As a result, a delay of the trial beyond November — for whatever reason — could have major implications for the political parties and for the country. This is to say nothing of the fact that if Trump actually beats Biden, he will shut down the federal criminal cases against him and embark on an unprecedented campaign of prosecutorial retribution against his supposed enemies.
The fact that the Court effectively has a blank slate on these issues is a justifiable cause for serious concern, particularly given the conservatives justices’ transparent politicking in recent years — a fact that was underscored several weeks ago in an infuriating inside account from the New York Times about how the conservative justices overruled Roe v. Wade. The story makes clear that they knew they were going to overrule Roe in early 2021 but delayed the process of officially taking up the case to do it in order to mislead the public. Three of the conservatives — Chief Justice John Roberts, Brett Kavanaugh, and Amy Coney Barrett, who had been confirmed shortly before the 2020 election to fill Ruth Bader Ginsburg’s seat after her death — worried that a decision shortly after Barrett’s arrival would look too political, as if the conservatives had simply been waiting for a solid anti-Roe majority to arrive before striking it down. (That is, in fact, exactly what they had been doing.)
Still, there are reasons to remain optimistic about the Court’s eventual handling of Trump’s immunity claim and the prospect of a trial in the Justice Department’s case this year. For starters, the conservative bloc did not help Trump when he tried to get the Court to overturn the 2020 election results through litigation, and its members are likely wary of being perceived as Trump’s stooges, particularly since all three of his appointees are relatively young and may have decades left to serve. The conservative legal movement, after all, was using Trump — to promote their personal, professional, and political interests — as much as he was using them.
Moreover, Trump’s claim to immunity from criminal prosecution is so over the top, so absurd, and so inconsistent with our country’s founding principles — as well as our democratic traditions and aspirations — that even the conservative justices would have to know that endorsing the theory as Trump has presented it could prompt serious and widespread civil unrest. It is possible that there is a legitimate, reasonable argument in favor of limited presidential prosecutorial immunity, but the idea that any such immunity could extend to the acts alleged by the Justice Department in their indictment of Trump over the 2020 election is outrageous, and it would open the door to even more extreme forms of criminality and corruption in our government than the ones the justices have already permitted.
Still, make no mistake about it: We are in the midst of perhaps the most constitutionally and legally intricate presidential election of our lifetimes, and the Supreme Court is now integral to the outcome.
It is a highly unfortunate situation that is likely to make the political situation this year even more unstable and rancorous. After all, the Court’s credibility is practically at an all-time low, thanks to the conservative justices’ wildly unpopular rulings and endless ethical controversies, and it is now poised to once again partially decide a presidential election — something that no sane person should want. (For the record, Congress could have gotten rid of Trump once and for all if Republicans had convicted him in the second impeachment. They also could have resolved Trump’s eligibility under the 14th Amendment even after the fact through legislation.)
The Biden administration is not blameless here. They made a decision years ago not to press for Supreme Court reform, and though they may never have had a shot as a matter of political reality, they also never really tried. As a result, they had to sit by while the Court tanked one of Biden’s signature domestic priorities last summer, and now his reelection prospects will be partially but significantly beholden to the same group of justices.
More importantly, the Justice Department clearly should have moved much more quickly than they did in investigating and charging Trump over the 2020 election. Had they done so, Trump might very well have been convicted by now, with the political knock-on effects well underway. This would have been the legally and politically smart thing to do, and in another world, it might have spared us all from the current state of affairs, in which Trump has even odds of success on his reelection bid.
Instead, here we are — at the start of a year that is shaping up to be as politically and legally messy as any in recent history, with a range of possibilities that is shockingly broad and legitimately unsettling. Hopefully it will all work out for the country in the end, but truly, it did not have to be this way.
