With the nation’s Chief Justice warning of “pretty daunting consequences” if the Supreme Court were to ban Donald Trump from seeking the Presidency, the Court left little doubt on Thursday that it will allow his candidacy to continue.
After two hours and eight minutes with all nine Justices examining the historic case of Trump v. Anderson, there was no reason to imagine a majority coming together to uphold a decision by the Colorado Supreme Court that Trump is constitutionally disqualified from running for a new term in the White House.
Perhaps the most telling comment came from a Justice whose vote almost certainly would have been needed to find Trump ineligible, the liberal Elena Kagan. She asked rhetorically: “Why does a single state get to decide who gets to be President of the United States?…That seems quite extraordinary.”
Although the Court will now deliberate in private over just how to decide, and that might raise some remote possibilities that minds could change, these were the dominant impressions as the hearing finished at 12:18 p.m. Thursday:
- The final vote to allow Trump to continue his candidacy probably will be 8-to-1, with only liberal Justice Sonia Sotomayor in dissent.
- If the Court wants to achieve unanimity, so as not to be perceived as making a decision reflecting a deep philosophical divide, even Justice Sotomayor might be brought around to join to achieve that.
- The Court would not attempt to resolve whether Trump had acted unconstitutionally by trying to overturn his election defeat in 2020, but would find historical and legal reasons to conclude that it was not the role of courts, and especially not of state courts, to decide.
- The Justices might even leave undisturbed the Colorado state courts’ factual conclusions that Trump did engage in an “insurrection,” but that would not matter if state courts were ruled to have no role in barring his candidacy for that reason.
- The Constitution’s 14th Amendment, Section 3, ban on officeholding by anyone who engages in insurrection against the Constitution is now all but a dead letter, unless the almost impossible were to happen and Congress revived it by passing a law to enforce it
- The Court seemed not to be troubled by the prospect that, if Trump were to win the election in November, the entire constitutional controversy over his eligibility would return to the Court with only weeks left before inauguration day, setting up a potential constitutional crisis.
The “pretty daunting consequences” that Chief Justice John G. Roberts, Jr., foresaw if the Court were to rule against Trump’s candidacy were that many states would take differing positions on that question with the end result that “just a handful of states” would decide the outcome of the presidential election. No Justice mentioned the possibility of violence by Trump’s followers if the Court were to rule against him.
Many observers of the Court’s work and current modes of operating had predicted that the Justices would actively seek ways to avoid deciding the deeply contested question of Trump’s eligibility to run.
However, what actually emerged at the hearing was the clear impression that most if not all of the Justices came to the bench with their minds close to being made up, that their most important task was to rule in a way that would end the dispute quickly, letting the matter return to the voters.
The Court’s newest member, the moderate-to-liberal Justice Ketanji Brown Jackson, asked near the end of the hearing: “If we think that the states can’t enforce [the 14th Amendment provision], what happens to this case? Is it done?”
The overall hearing very likely provided the best answer: perhaps the only way that some state governments would feel free to continue examining the legality of Trump’s candidacy would be if the Court’s final decision would be limited to the Colorado case, finding fault with that but not making broad declarations. It was hard to imagine, as the hearing unfolded, that the Court was going to rule narrowly.
As the Justices took turns quizzing the three lawyers, one by one the questions began giving strong hints of how each Justice was leaning. Almost certainly voting to overturn the ruling against Trump would be the Chief Justice and Justices Clarence Thomas, Samuel A. Alito, Jr., and Neil M. Gorsuch. Very likely joining in that outcome would be Justices Amy Coney Barrett, Justice Kagan, Justice Brett M. Kavanaugh, and strongly leaning that way, Justice Jackson. Only Justice Sotomayor made repeated remarks suggesting that she might be prepared to dissent, even if doing so alone.
There was a distinct sense that the Court would make a strong effort to decide quickly, so as not to prolong the controversy and lead other states to go on deciding, separately, how to deal with Trump’s candidacy.
Even if the Court does act promptly to put this controversy behind it, it is going to be facing another round of dealing with Donald Trump on Monday, when he files a new plea to the Justices to help him shut down the criminal prosecutions of him, based on a theory that he is legally immune for all of the actions he took while serving in the Presidency.
The Court may even have something to say about that separate dispute as soon as next week.