WASHINGTON (CN) — The Supreme Court is stuck between a rock and a hard place as the justices attempt to provide the country with an even-keeled, apolitical ruling in one of the most high-stakes political battles on the docket in decades.
The former president’s fight to stay on Colorado’s presidential primary ballot reviewed by the Supreme Court on Thursday is one in a pair of cases the justices will have to weigh in on this year: Trump is also expected to appeal the D.C. Circuit’s ruling denying his presidential immunity to criminal charges tied to election subversion efforts.
Taken together, some court watchers speculate that the justices could let Trump win one battle, lose the second — and leave the Supreme Court to triumph in the end. If Thursday’s argument was any indication, the justices could sweeten the deal for themselves by issuing unanimous opinions, signaling that their ruling is for the court, not just the majority.
“I think it’s plausible that the chief justice — who we know cares deeply about the court’s integrity and institutional reputation — may feel strongly that if it’s possible … he would like two unanimous opinions,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said after Thursday’s arguments.
He continued, “If they can pull out two 9-0 opinions, or something close to it, that would allow the court to say to the public, we’re not a pro-Trump court or an anti-Trump court, we’re the United States’ court.”
The effort to avoid political turmoil was clear in the justices’ aversion to the more complex issues in Trump’s case. Thursday’s review of the former president’s removal from Colorado’s ballot was scarce in its mentions of why the state decided Trump needed to be disqualified in the first place.
Instead of considering if Trump engaged in an insurrection on Jan. 6, 2021, the high court kept all but a few questions centered on the legal issue of whether Colorado had the authority to implement the Constitution’s Disqualification Clause without congressional approval.
“If they take the off-ramp and say states can't disqualify [presidents], they don't have to define insurrection,” said Mark Graber, a constitutional law professor at the University of Maryland.
Without getting into the nitty gritty details of Trump’s actions on Jan. 6, the court can shift that responsibility elsewhere.
For Justice Brett Kavanaugh, the onus seemed to be on the Justice Department, which hasn’t filed charges against Trump under the Insurrection Act. Special counsel Jack Smith has charged Trump with four other criminal counts related to election subversion activities.
Congress seemed to be another option. Chief Justice John Roberts suggested Colorado needed authorization from lawmakers to use the Section 3 disqualification clause.
Even if the justices can come to a unanimous agreement to get Trump on the ballot without touching his actions on Jan. 6, the court's ruling is likely to face scrutiny.
Legal experts are already measuring Thursday’s arguments against the court’s other rulings and claiming the justices have abandoned originalism now that it does not result in their favored outcome.
“The hearings today suggest that the court's preoccupation with originalism and states' rights are situational, rather than deeply-held convictions,” said Lindsay Chervinsky, a senior fellow at SMU’s Center for Presidential History.
Chervinsky pointed out that the court has previously allowed states broad power over other election decisions concerning gerrymandering and voting rights, however, Colorado’s case left the justices looking to limit states’ authority.
“The obvious and expected conclusion is that the justices do not want to be responsible for removing Donald Trump from the ballot and sought the cleanest exit from the case,” Chervinsky said.
No matter how skillful the justices are in dampening the political leanings of their rulings, the court is at a disadvantage, having been under intense scrutiny for the past decade as the conservative supermajority has come into power and used its sway to overturn decades of precedent.
Since 2020, the Supreme Court has seen a sharp decline in its public approval, with only 40% of Americans expressing some trust in the court.
Follow @KelseyReichmann
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
