The court could also be called upon to weigh in on a series of lawsuits seeking to hold Trump accountable for the violence at the Capitol on Jan. 6, 2021.
And in the latest turn of events, the justices now seem poised to decide a novel and momentous legal question: whether Trump should be disqualified from state ballots for engaging in an insurrection January 6 in violation of a Reconstruction-era constitutional amendment.
Taking up just one of these cases would place the Supreme Court — with a conservative majority bolstered by three Trump appointees — in a particular political spotlight that it has not felt in the 23 years since it decided Bush v. Gore and cemented the winner of the 2000 presidential race.
But a number of the issues the court is now confronting could drastically affect the timing of the proceedings against Trump, the scope of the charges he should face or his status as a candidate, with potentially profound effects on his chances of winning the election. And the justices could easily become ensnared in several of the questions simultaneously.
“In this cycle, the Supreme Court is likely to play an even larger role than in Bush v. Gore,” said David Becker, executive director of the Center for Election Innovation and Research, a nonpartisan group dedicated to improving election administration.
“It’s not just the issue of whether or not Donald Trump engaged in insurrection, which would disqualify him from holding the presidency under the 14th Amendment,” Becker said, “but also issues related to presidential immunity and criminal proceedings in general.”
All of this arrives at a particularly vulnerable moment for the court. In the wake of its decisions on contentious issues like abortion rights and affirmative action, critics have assailed it for being guided by an overt political ideology. At the same time, some of the justices have come under withering personal scrutiny for their finances and links to wealthy backers.
“Most of the justices would surely prefer the court to keep a low profile in the 2024 presidential election,” said Richard Pildes, a law professor at New York University.
“In a highly polarised, social media-fueled political culture,” he said, “the justices know that nearly half the country is likely to view the court as having acted illegitimately if the court rules against their preferred candidate.”
But while the court’s current majority has certainly favoured any number of staunchly conservative policies, it has shown less of an appetite for supporting Trump’s attempts to bend the powers of the presidency to his benefit or to interfere with the mechanics of the democratic process.
The justices largely ignored the slew of lawsuits that he and his allies filed in lower courts across the country three years ago seeking to overturn the last election. They also rejected out of hand a last-minute petition from the state of Texas to toss out the election results in four key battleground states that Trump had lost.
None of this, of course, is a guarantee of how the court might act on the issues it is facing this time.
Even a decision by the Supreme Court to move slowly in considering the issues heading its way could have major ramifications, especially the question of whether Trump is immune from prosecution for actions he took as president. If that issue gets tied up in the courts for months, it could make it harder to schedule his trial on charges of trying to overturn the 2020 election before the general election season starting in the summer — and could even delay it until after Election Day.
In fact, there are so many moving parts in the overlapping cases that Trump is facing that it is all but impossible to predict which issues might get taken up, how the justices will rule on the questions they consider and what effects their decisions might have as they flow downstream to the lower courts that are handling the former president’s four criminal cases and his many civil proceedings.
It is important to remember something else: Trump is interested in more than winning arguments in court. From the start, he and his lawyers have pursued a parallel strategy of trying to delay his cases for as long as possible — ideally until after the election is decided.
If he can succeed in such a delay and win the race, he would have the power to simply order the federal charges he is facing to be dropped. Regaining the White House would also complicate the efforts of local prosecutors to hold him accountable for crimes.
The courts have shown that they, too, are aware that timing is an issue in Trump’s cases.
Judges are normally loath to set the pace of proceedings based on outside pressures, but in the cases involving Trump the courts have found themselves in an unusual bind.
Setting too aggressive a schedule could impinge on the rights of the defendant to have sufficient time to prepare for a complex trial. But to move too slowly would be to risk depriving voters of the knowledge they would glean from a trial before Election Day and give Trump, were he to win the election, the chance to kill the prosecutions or put them on hold for years.
“It’s all extremely awkward,” said Alan Rozenshtein, a former Justice Department official who teaches at the University of Minnesota Law School.
Having the courts so enmeshed in Trump’s legal and political future has opened up the question of just how much ordinary people, not judges, will get to decide what happens at the polls next year. It has also left unresolved the degree to which judicial decisions will affect whether voters are able to hear the evidence that prosecutors have painstakingly collected about Trump’s alleged crimes before they render a decision about whether to reelect him.
Some election law specialists said the courts should generally defer to voters and not interfere in the choices they can make.
“My view is that Trump is a political problem, and the appropriate response is politics,” said Tabatha Abu El-Haj, a law professor at Drexel University.
But Edward Foley, a law professor at Ohio State University, said that elections must be governed by legal principles.
“It’s commonplace to think that voters, not courts, should determine who’s elected president,” he said. “But it’s also essential to remember that the law, including court rulings, structures the electoral choices voters face when they cast their ballot.”
This article originally appeared in The New York Times.
Written by: Alan Feuer
Photographs by: Doug Mills
©2023 THE NEW YORK TIMES
