AP (“A Supreme Court decision could come Monday in a case about barring Trump from the 2024 ballot“):
A Supreme Court decision could come as soon as Monday in the case about whether former President Donald Trump can be kicked off the ballot over his efforts to undo his defeat in the 2020 election.
Trump is challenging a groundbreaking decision by the Colorado Supreme Court that said he is disqualified from being president again and ineligible for the state’s primary, which is Tuesday.
The resolution of the case on Monday, a day before Super Tuesday contests in 16 states, would remove uncertainty about whether votes for Trump, the leading Republican candidate for president, will ultimately count. Both sides had requested fast work by the court, which heard arguments less than a month ago, on Feb. 8,
The Colorado court was the first to invoke a post-Civil War constitutional provision aimed at preventing those who “engaged in insurrection” from holding office. Trump also has since been barred from primary ballot in Illinois and Maine, though both decisions, along with Colorado’s, are on hold pending the outcome of the Supreme Court case.
The Supreme Court has until now never ruled on the provision, Section 3 of the 14th amendment.
The court indicated Sunday there will be at least one case decided Monday, adhering to its custom of not saying which one. But it also departed from its usual practice in some respects, heightening the expectation that it’s the Trump ballot case that will be handed down.
Except for when the end of the term nears in late June, the court almost always issues decisions on days when the justices are scheduled to take the bench. But the next scheduled court day isn’t until March 15. And apart from during the coronavirus pandemic when the court was closed, the justices almost always read summaries of their opinions in the courtroom. They won’t be there Monday.
Any opinions will post on the court’s website beginning just after 10 a.m. EST Monday.
WaPo (“Supreme Court to post a decision Monday, possibly on Trump ballot access“) adds:
The Supreme Court is set to announce at least one opinion Monday morning, leading to speculation the justices could rule on Donald Trump’s eligibility for the Colorado ballot the day before Super Tuesday — when presidential primary elections are held in that state and more than a dozen others.
The high court took the unusual step Sunday of scheduling an opinion announcement for a day when it is not in session. The justices typically issue rulings from the bench, with the author of the majority opinion presenting a summary of the court’s decision. Instead, the court said opinions could be posted on its website Monday at 10 a.m.
[…]
With the primary season looming, the Supreme Court fast-tracked the case, one of several on the docket this term that will impact Trump’s political and legal future.
After oral argument on Feb. 8, it seemed likely that a broad majority of the court would decide to keep Trump on the ballot. Justices from across the ideological spectrum warned of troubling political ramifications if they did not reverse the Colorado ruling. Several justices suggested that a state court ruling initiated by voters in one state to bar him from federal office would throw the presidential race into extreme disarray.
It’s interesting that major outlets are so sure that this is the ruling that’s coming today but the reasoning tracks. Not only are they releasing an opinion two weeks earlier than they otherwise would but they sent out announcement on a Sunday night to alert the press.
As the linked 8 February WaPo report on the oral arguments (“Supreme Court poised to allow Trump to remain on Colorado ballot“) makes clear, pretty much every single Justice who asked questions during oral arguments displayed profound skepticism of the Colorado ruling.
Justices from across the ideological spectrum warned of troubling political ramifications if they do not reverse a ruling from Colorado’s top court that ordered Trump off the ballot after finding that he engaged in insurrection around the Jan. 6, 2021, assault on the U.S. Capitol.
[…]
During more than two hours of argument, the justices asked questions that suggested their often divided benchcould reach a unanimous or near-unanimous decision to reject the challenge to Trump’s eligibility brought by six Colorado voters. Not since the court’s 2000 ruling in Bush v. Gore, which focused on ballot-counting and sealed the election for President George W. Bush,has the Supreme Court been thrust into such a pivotal role in a presidential election.
Liberal Justice Elena Kagan repeatedly questioned whether one state should be allowed to decide whether a presidential candidate is disqualified. “Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?” she asked, adding, “That seems quite extraordinary, doesn’t it?”
Conservative Justice Amy Coney Barrett agreed, adding that “it just doesn’t seem like a state call.”
Trump is quickly closing in on the GOP nomination, and several justices suggested that a state court ruling initiated by voters in one state to bar him from federal office would throw the presidential race into extreme disarray.
Chief Justice John G. Roberts Jr. predicted that a number of other states would quickly try to disqualify the leading Democratic candidate if the justices allowed the Colorado decision to stand. He called the prospect of a handful of states deciding the presidential election a “pretty daunting consequence.”
Justice Brett M. Kavanaugh worried about disenfranchising voters if the court removed Trump from the ballot. “What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide?” he asked.
The consequentialist arguments are powerful but odd. Either states have the right under the 14th Amendment to keep insurrectionists off the ballot or they don’t. And, while I’ve been skeptical of whether they do, absent criminal conviction, this is a powerful rejoinder:
In response, attorney Jason Murray, representing the Colorado voters, said, “The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance.”
And this line of reasoning strikes me as just odd:
A divided Colorado Supreme Court disagreed and barred Trump from the ballot, prompting his appeal to the Supreme Court. Maine’s secretary of state reached the same conclusion, but her decision is also on hold.
Much of the discussion Thursday centered on differing interpretations of the text and history of the 14th Amendment provision, also known as the disqualification clause, which was initially intended to stop former Confederates from returning to power after the Civil War.
Conservative Justice Clarence Thomas and liberal Justice Ketanji Brown Jackson — who have clashedon the most divisive issues before the court — both expressed deep skepticism of the Colorado voters’ view of the scope of the 14th Amendment. They agreed with Roberts’s assessment that the post-Civil War amendment was aimed at limiting the power of the states.
And yet, Roberts said, the Colorado voters seeking to remove Trump from the ballot appear to be trying to use the same amendment to say states have the power to prevent candidates from running for nationwide office.
“That seems to be a position that is at war with the whole thrust of the 14th Amendment and very ahistorical,” Roberts said.
To the extent that Section 3 is live and not just a vestigial remnant of the immediate aftermath of the Civil War (and I believe it’s the former), that doesn’t make much sense. In the immediate case, it was the states who were in insurrection against the Union. But the ban (which was ironically lifted rather quickly for Civil War leaders) was clearly aimed at individual insurrectionists.
I’m even more skeptical of the other argument that the Justices seem to be buying:
A majority of justices seemed ready to embrace the argument of Trump’s attorney, Jonathan Mitchell, who said enforcement of the disqualification clause is up to Congress, not state courts or officials. In addition, Mitchell said Section 3 does not apply to Trump because the president is not an “officer of the United States,” which is one of the terms the section uses when discussing potential insurrectionists.
Jackson seemed to share his doubts about whether Section 3 applies to former presidents because it is not one of the government positions specifically listed in the text.
“You have a list and president is not on it,” she emphasized.
Kagan, however, pressed Mitchell about why the framers would have left out the highest office in the land. What reason would they have had, she asked, for saying an insurrectionist cannot hold the “whole panoply of offices in the United States, but we’re perfectly fine with that insurrectionist being president?”
Mitchell acknowledged that it “does seem odd that President Trump would fall through the cracks,” but said the text represents a compromise. He insisted “officer” means an appointed official, not the elected president.
The notion that the President isn’t an officer of the United States seems absurd. The arguments for that position are strained, indeed.
Regardless, this case is more politically charged than most, and the Justices clearly recognize that:
Derek Muller, a University of Notre Dame law professor who has been closely following the case, said Thursday’s arguments showed both liberals and conservatives on the court are “uncomfortable with the notion that it was going to be the decider here.”
“The court does not want to be in the business of cleaning up ballot access disputes for presidential candidates in perpetuity,” Muller said.
Unlike the divided ruling in Bush v. Gore, which polarized the nation, Muller said a unanimous or close to unanimous decision might be more widely accepted by the public.
“Maybe it’ll be more palatable to people to say, ‘Listen, we really expect the political process to solve this, rather than expecting litigation to answer the question.’”
If the oral arguments are any indication, we’re likely to get a ruling that’s unanimous or at least very close.
