WASHINGTON (CN) — The Supreme Court will play a massive role in the future of Donald Trump’s legal and political future but the former president’s blockbuster cases will also shape the institution that decides them.
Already before the high court is the question of Trump’s immunity against criminal charges from his election interference efforts leading up to the Capitol riot on Jan. 6, 2021. On its heels is a likely appeal from the Colorado Supreme Court, which disqualified Trump from the state’s ballot because of his connection to the insurrection.
But before the justices can ink a ruling on either issue, they’ll have to answer some questions of their own. Lawmakers have already begun to call on Justice Clarence Thomas to recuse from any issue involving the effort to overturn the 2020 election because of his wife’s involvement.
Virginia “Ginni” Thomas sought to overturn the election result to keep Trump in office. Last year she was interviewed by the House committee investigating the insurrection, where she stood by her false claims that the 2020 election result was fraudulent. Ginni’s text messages revealed that her efforts stretched to the top levels of the White House, urging chief of staff Mark Meadow to act to keep Trump in office. She also sent emails to lawmakers in Arizona and Wisconsin.
Thomas was one of three dissents when the Supreme Court rejected election challenges from Trump in 2021. The calls for Thomas to recuse from related matters have only intensified since then.
In October, Thomas turned over a new leaf, stepping aside from the consideration of John Eastman’s effort to shield his emails from the Jan. 6 committee. Thomas did not explain his choice to recuse from this petition and not others.
Since then, the Supreme Court has implemented a new ethics code, including a provision requiring recusal if a justice’s spouse has any interest that could be affected by the outcome of the proceeding.
Thomas’ recusal from Trump’s cases could be consequential. The Bush appointee is a reliable vote for the conservative wing, and although they hold a supermajority on the court, it’s possible Trump’s cases could lead to some surprising coalitions.
“Bush v. Gore was eminently predictable. … This case is not predictable because Trump is not Bush, and this is not politics as usual,” Eric Segall, a law professor at Georgia State University, said in a phone call.
With a few outliers, the Roberts court typically swings towards Republican interests. However, even those interests are unclear with Trump splitting the party.
“The Roberts court, in cases directly affecting the interests of the Republican party and elections, rules for the Republican party 99% of the time,” Segall said. “So what they perceive to be in the best interest of the Republican party is going to be a major part of this.”
One hint on how the justices might rule could be taken from the court’s landmark ruling last term in the college admission cases. Applying originalism, the justices rejected affirmative action policies under the original meaning of the 14th Amendment.
Should the justices review Trump’s disqualification from Colorado’s ballot, the court will shed light on a section of the 14th Amendment that has hardly been touched for over 150 years. However, some legal experts think the conservative majority’s preference for originalism will lead the justices to find that Trump can be disqualified.
“This part of the 14th Amendment hasn't been used very much since the immediate years after the Civil War, but a lot of the justices on the court have described themselves as originalist, so this will be a test of their commitment to that methodology,” Smita Ghosh, appellate counsel with the Constitutional Accountability Center, said. “How they use the original meaning of the terms of that part of the 14th Amendment to come to their decision will be something to look at.”
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