In a risky rendezvous with history one week from today, the Supreme Court faces exceedingly hard choices: Can it – and should it – ban Donald Trump from American politics?  The Justices will explore those questions at a hearing with deep political and constitutional meaning.

The Court almost certainly has the power to take Trump off the ballot, under a variety of legal principles.  Technically, a ban by the Court would not be permanent; Congress could erase it but that would be a long shot, requiring a two-thirds vote in each chamber.

There are also competing factors why the Court should not impose a ban.

And there is a third alternative: the Court could pull itself out of the midst of this year’s presidential election season, by simply dismissing Trump’s appeal or by declaring that the choice must be left to the people, at the polls, or to Congress.  And there are reasons to do that, too.

Even as the Court weighs its options in Trump v. Anderson, at next Thursday’s hearing and in private deliberations after that, Trump will be moving toward securing enough Republican convention delegates to give him the nomination or put it within easy reach.  The longer the Court takes to decide, the more Trump’s candidacy seems likely to gain politically.

Indeed, many pundits and some national GOP leaders are suggesting that the GOP race is already over, that Trump’s nomination is inevitable.  His candidacy, though, could be in considerable doubt if, sometime this year, he is found guilty of one or more crimes.

Not since a Tuesday night in December 2000, as the clocks at the Supreme Court ticked toward a midnight deadline, has the Court been more deeply embroiled in a presidential election.  On December 12, 2000, less than two hours before midnight, the Court decided the case of Bush v. Gore.  Moving with extraordinary speed, the Court in just 36 days after the November election  worked out a decision that stopped the recounting of votes in Florida. That made Texas’ GOP Governor George W. Bush the President, defeating then-Vice President, Democrat Al Gore.

Justice Clarence Thomas is the only member of the 2000 Court still on the bench.  Three of the other current Justices had roles in that case, working as private lawyers with Bush’s legal team: Chief Justice John G. Roberts, Jr., and Justices Amy Coney Barrett and Brett M. Kavanaugh.

A quarter-century after that ruling, it is still easy to stir up an argument over whether the Court ruled that way (by a 5-to-4 vote) with the specific partisan intent to hand victory to the GOP and Bush.   The dissenters complained at the time that the Court had suffered a “self-inflicted wound” and harsh criticism of the ruling has not eased much since then.

Today, there are critics of the Court who speculate that its majority of conservative Justices will decide the Trump case in a way to best help the Republican Party.  But that speculation leaves unclear whether the GOP would be better off with Trump out of the way or still in the running.

The institutional integrity of the Court is now under serious challenge, not from this case but from ethical controversy and the majority’s willingness to cast aside historic precedents.  Its reputation may be again at stake, depending upon how it rules in the new Trump case.

The Court has emphasized the importance of this case by again moving with uncommon speed to consider it.  It agreed to hear Trump’s appeal two days after it was filed.  It chose to interrupt its usual mid-term recess to hold a hearing on the case – a rarity for an institution that generally follows fixed schedules, planned well in advance.

The question before the Court in Trump v. Anderson:  Did the Colorado Supreme Court get it wrong in declaring that Trump is constitutionally disqualified to hold office under the Constitution’s 14^th Amendment, Section 3, and thus is ineligible to be on the election ballot for any public office?

The Supreme Court has never interpreted that part of the 14^th Amendment, but there is a debate among scholars of law and history about the significance of an 1869 ruling by then-Chief Justice Salmon P. Chase in the case of In re Griffin.  That involved a 14^th Amendment disqualification challenge to a Virginia judge who had been a Confederate state legislator during the Civil War.

Chase decided that the disqualification clause could only be enforced if Congress enacted some mechanism for doing so.  That ruling was not binding on the Court, then or now, because Chase made it while sitting temporarily on a lower court.

When the Colorado Supreme Court ruled against Trump, the majority decided explicitly that it was not required to follow the precedent of the Griffin case, and it noted historians’ criticism of that decision.  It ruled that the 14^th Amendment disqualification clause is “self-executing,” needing no enforcement law.

The Colorado ruling is on hold while the Supreme Court reviews it, leaving the ex-President – as of now — on the ballot for the primary election in that state on March 5.  The Court might announce a result soon after next Thursday’s hearing.  (In Bush v. Gore, the Court issued its ruling one day after its hearing.)

No one outside of the Court knows how or whether the Justices and their staffs are paying attention to this year’s political calendar, or whether that would make any difference to them.  The calendar, though, is rapidly accelerating.

Trump already has won 32 delegates to next July’s GOP nominating convention by winning the Iowa caucuses (20 delegates) and the New Hampshire primary election (12 delegates).  Next, Nevada Republicans will hold caucuses on the day the Court hears the Colorado case.

Although the Court is not required to match its pace to the political calendar, one of its own election law practices suggests that it do so.  That is a legal concept known as the “Purcell principle,” which dictates that courts generally should not make changes in election laws when voters are about to cast their ballots, because of the risk of confusing voters about their choices.  (The principle takes its name from a 2006 ruling by the Court in an Arizona voting rights case, Purcell v. Gonzalez.)

Michigan Secretary of State Jocelyn Benson, who takes no position on whether Trump is ineligible, cited the “Purcell principle” in a legal brief in the Colorado case, urging the Court to settle the dispute in a way that leaves no doubt in the minds of voters whether he will remain a candidate.  The Court, she added, should not decide on a narrow basis because that “delays final determination…until even closer to the election.”

State courts in Colorado, Maine and Oregon have put off further action on challenges to Trump in those states, specifically because the Court has voted to hear Trump’s appeal.  Those states and others clearly are hoping for firm guidance from the Justices.

The issue at the heart of the Trump appeal is one of national constitutional law and that very likely explains why the Court got involved.   Section 3 of the 14^th Amendment bans from any office any former government official who engaged in insurrection against the Constitution, after taking an oath to support it.  (The 14^th Amendment was ratified in 1868, and its Section 3 was aimed at that time at former Confederates who rebelled against the federal government.)

Colorado’s Supreme Court ruled in December against Trump’s eligibility, finding that there was an insurrection at the U.S. Capitol on January 6, 2021, that Trump took part in it, and that doing so violated the oath of office he had taken as President.

The Supreme Court appears to have three basic choices now: (1) end the case without a clear ruling on Trump’s candidacy, (2) rule that he is not disqualified, or (3) bar him as disqualified.  Here, in summary, are reasons that the Court might rely upon for each option:

No direct ruling on Trump’s eligibility:

• Because primary elections are already occurring across the nation, it would risk too much voter confusion for the Court to decide the constitutional issue at this point.
• The issue is not ready for a ruling, because Trump is not yet nominated for the Presidency (this could mean that the issue could be raised again if he does become the GOP’s choice to run in the general election on November 5).
• The history of the 14^th Amendment’s drafting, passage and ratification leaves the issue unresolved, and the Court thus has no established principles for deciding it (this would leave it to the states to decide individually, unless Congress were to step in).
• The issue is a political question, and the courts have no authority to decide it (this would end completely all constitutional challenges to Trump as a candidate but leave the issue dangling in uncertainty, leaving it to the voters or to Congress).
• The issue is for Congress to decide under its power to enforce the 14^th Amendment (this could end the challenge if both of the closely divided chambers were unable to act).
• The issue is for the states to decide, under their basic constitutional authority to operate federal elections (this would run the risk of a bewildering variety among differing states).
• The Colorado procedure on disqualification did not give Trump a fair opportunity to defend his candidacy (this might lead the Court to send the case back for a new look).
• No one who has sued to challenge Trump’s candidacy had a legal right to bring such a lawsuit (this would shut down all court challenges, but might allow challenges under some states’ election laws).

Trump is not disqualified:

• The 14^th Amendment Section 3 provision does not apply at all to the Presidency.
• That provision only applied to Confederates who took part in the Civil War, and is no longer in operation.
• The provision could not be enforced now because Congress has not provided some specific mechanism for doing so.
• State courts and state officials have no role in deciding whether a presidential candidate is qualified. If they act to disqualify a candidate based on state law, federal courts can overturn that interpretation of state law.
• The Colorado procedure on disqualification was flawed because the procedure violated his right to a fair court review.
• The ban would not apply to Trump unless he first was convicted in a criminal case (this would postpone the disqualification issue at least until a first guilty verdict).
• The provision only bars holding office, not running for office (this could postpone the issue until Trump had won the election, potentially creating a national crisis over his right to take office).
• What happened on January 6, 2021, at the Capitol did not qualify as an “insurrection” under the Constitution.
• Even if that uprising was an “insurrection,” Trump did not personally engage in it.
• His speech at a rally on the morning of January 6 did not amount to incitement to engage in insurrection and, in any event, is protected under the First Amendment’s Free Speech Clause.

Trump is barred from seeking any office:

• The 14^th Amendment Section 3 provision applies to the Presidency as the highest office in the land. The drafters of the provision did not intend to exclude that office when so many lower-ranking offices were covered.
• Those who wrote that Amendment meant it to continue in effect to apply to any future uprising similar to the Civil War as a threat to the Constitution.
• The provision is self-executing – that is, it operates on its own without any need for action by government to implement it. There also is no need for a prior criminal conviction before the provision applies.
• The January 6 attack on the Capitol met the definition of an “insurrection.”
• Trump, by his actions related to the transfer of presidential power, did engage personally in an “insurrection.”
• His rally speech is not protected by the First Amendment because it led very quickly to violence by his followers at the Capitol.

The mere recital of the options facing the Justices suggests how much is at stake in this single case arising from one state but likely affecting the whole democratic project.  Garrett Epps, an Oregon law professor and legal affairs editor of Washington Monthly, has written: “The Justices are paid to decide important cases; this may be the most important one they will ever face.”

Three election law experts, in a brief filed in the Colorado case, told the Court: “We appreciate fully that the members of this Court would prefer not to be thrust into the midst of a presidential election like this one.  But there is no avoiding it.”  Failing to make a decisive ruling, the brief argued, “would mark a dangerous refusal by this Court to do its duty.”

Aside from the core constitutional question, there are other unanswered questions still hanging over the case.  One such issue: What do President Biden and his Justice Department think about the constitutional controversy over Trump’s candidacy?

The President has said recently that he might not stay in the race if Trump were not running.  It is not clear how serious Biden was about that.  But if the Court were to move slowly on his case, that might affect Biden’s options.

The Biden Justice Department might have its own interpretation of the issues in the Colorado case, and it has the option of deciding on its own to join in the case to offer those views.  After all, the Constitution’s meaning is of vital concern to the national government, with the presidency potentially at stake in this case.

So far, however, the Department has remained on the sidelines of this dispute, probably trying to avoid criticism that it would be challenging Biden’s likely political opponent.  The Court could ask the Justice Department for its views; it frequently does so on issues before the Justices that affect the government’s interests.  It has not done so in this case.  (When the Bush v. Gore case arose in 2000, the Justice Department took no part and the Court did not seek its views.)

Special Prosecutor Jack Smith, who operates within the Justice Department but has considerable independence, has taken no role in the Colorado case, no doubt to avoid the appearance of turning the criminal cases he is pursuing into politically motivated efforts.

Even so, Trump and his lawyers have repeatedly accused Biden and Prosecutor Smith of a political vendetta against him to interfere directly in the presidential race.

Another open question:  what, if anything, does the Colorado case have to do with the criminal cases against Trump, especially those in Washington, D.C., and Atlanta, GA, growing out of the January 6, 2021, uprising?

Trump’s eligibility as a constitutional matter before the Supreme Court does depend, in part, on whether the incidents surrounding the assault on the Capitol amounted to an “insurrection” and whether he personally engaged in it.

In criminal court, however, Trump has not been accused of insurrection.  Special Prosecutor Smith could have chosen to seek such a charge against Trump under an 1862 federal criminal insurrection law, based on the January 6 incident.  For reasons not explained, Smith has not.

The four charges Trump faces in the Washington, D.C., case are: corrupt obstruction of the presidential vote-count proceeding, a conspiracy to carry out that obstruction, a conspiracy to defraud the government, and a conspiracy to violate civil rights.

(The Atlanta case is a state prosecution.  While much of it stems from the events of January 6, Georgia prosecutors are pursuing a massive case of “racketeering” under state law.  That case is unaffected by the Colorado case in the Supreme Court.)

Smith’s federal criminal cases against Trump can go forward, and probably would, whether the Trump candidacy continues.  There is one possibility, though, that the federal cases could end without a conviction.  Trump has been pursuing in lower courts an argument that he is absolutely immune to prosecution for anything he did as part of his duties while President, and he claims that includes all of his actions related to the 2020 election.

A federal judge who is handling the Trump case in Washington, Judge Tanya S. Chutkan, has rejected that claim.  Prosecutor Smith tried in December to persuade the Court to review that issue before it was heard by a federal appeals court, but the Justices denied that move.

Although Trump’s Washington trial remains scheduled to begin March 4, his immunity challenge must be decided before that.  The appeals court held a hearing on the issue three weeks ago, but has given no sign when it will decide, even though its review is on a fast track.  Once a decision emerges, that dispute could return to the Supreme Court as a separate case.

The Washington trial also may be affected by another case unfolding in the Supreme Court, not involving Trump directly.  The Court in December agreed to hear an appeal by Joseph W. Fischer, a Jonestown, PA, police officer, who is one of more than 1,000 individuals who have been charged with federal crimes for roles in the assault on the Capitol.  Fischer is awaiting trial on a charge of obstructing the congressional counting of presidential votes on January 6, 2021 – the same as one of the charges against Trump, and maybe impacting a second of those charges.  Fischer claims that the law does not apply to his actions that day.  If he wins, Trump’s lawyers could try to take advantage of that in his Washington trial.

The Supreme Court is not expected to hear Fischer’s case until April, and that could complicate Prosecutor Smith’s options in the Trump trial, whenever that begins.

The Court thus appears certain to remain centrally involved in this complex mixture of law and politics in coming months, and to do so under intense pressure to act quickly and decisively.