Updated Feb 9, 2024 - Politics & Policy

How the Supreme Court could affect the 2024 presidential election

Trump supporters wave flags outside of the Supreme Court building after the 2020 presidential election.

Supporters of U.S. President Donald Trump wave flags outside of the U.S. Supreme Court on Dec. 11, 2020. Photo: Stefani Reynolds/Getty Images)

Former President Trump's political future and the contentious 2024 presidential election could hinge in part on a series of legal issues that the Supreme Court is weighing.

Why it matters: Regardless of how the court rules, it could anger Americans on either side of the nation's political divide, and further damage the public's historically low trust in the Supreme Court.

  • Here are the legal issues the Supreme Court could rule on that have implications for Trump and the 2024 election:

Colorado's 14th Amendment ballot case

Colorado's Supreme Court ruled in December that the 14th Amendment's insurrection clause disqualifies Trump from appearing on the state's ballots in next year's presidential election.

  • Colorado's court found that Trump's behavior toward the Jan. 6 Capitol riot and his efforts to overturn the election amounted to him inciting violence and lawlessness to disrupt the peaceful transfer of power.
  • But U.S. Supreme Court justices seemed skeptical that states have the power to disqualify a presidential candidate during oral arguments on the issue in February.
  • Chief Justice Roberts said if Colorado's decision is upheld, other states could bar other candidates from the ballot, and eventually "just a handful of states" would decide the presidential election.

State of play: The justices could weigh in on whether Trump's actions amounted to engaging in "insurrection or rebellion" against the government or functioned as aid to "enemies" of the government.

  • The insurrection clause stipulates that such actions amount to acts of insurrection, which can disqualify someone from public office.
  • If the U.S. Supreme Court does not overrule the lower court decision, Trump could be left off of the state's ballot and would automatically lose its 10 votes in the Electoral College.

Although Trump has been charged with four counts by a federal grand jury for his actions leading up to and after the election, he has not yet been tried for, or convicted of, any crime.

  • He also was not charged with inciting an insurrection, which is outlawed by 18 U.S. Code § 2383.
  • Depending on if and how the court rules in the Colorado case, its decision will likely affect Trump's challenge to another ballot disqualification from Maine's secretary of state.

Does Trump have presidential immunity?

Special counsel Jack Smith asked the Supreme Court earlier this month to determine whether Trump can broadly invoke presidential immunity to avoid prosecution in the federal 2020 election interference case against him.

  • The former president's lawyers have argued that Trump should have immunity because he was acting within the "outer perimeter" of his official duties when he spread conspiracies about the election and led efforts to overturn its results.

Driving the news: The Supreme Court rejected Smith's request to immediately fact-track consideration of the case.

  • The decision raises the possibility that Trump's federal 2020 election trial stretches beyond the currently scheduled March 4 start date.
  • The U.S. Court of Appeals for the District of Columbia Circuit will now consider the immunity question, with oral arguments slated next month. The Supreme Court could then decide whether to hear an appeal in the case after the lower court issues its ruling.
  • A prolonged appeals process could push Trump's trial back further into the 2024 campaign season or even after the election.
  • The outcome of the case could also influence a racketeering case brought by prosecutors in Fulton County, Georgia, against Trump and several of his allies over their alleged efforts subvert the state's 2020 election results.

The Jan. 6 obstruction case

Earlier this month, the Supreme Court agreed to take up a Jan. 6 participant's appeal over an obstruction of an official proceeding charge he received for participating in the attack on the Capitol.

  • At issue in the case is the application and definition of 18 U.S.C. 1512(c), which outlaws the obstruction of an official proceeding by destroying, altering or concealing a "record, document, or other object, or attempts to do so."
  • Trump received the charge in his 2020 election interference case.
  • The defendant argued that the statute was never intended to apply to conduct like the Jan. 6 riot, which didn't explicitly involve a document, record or a specific object.
  • A U.S. district judge agreed, ruling that it only can apply to defendants who disrupted official proceedings by tampering with such objects.

However, the ruling was reversed by the U.S. Court of Appeals for the District of Columbia Circuit in a split decision, which held that the statute can apply to riotous conduct.

  • If the Supreme Court agrees with the Jan. 6 defendant, it would give Trump and hundreds of others who received the charge the ability to seek its dismissal.

Will Justice Thomas will recuse himself?

Supreme Court Justice Clarence Thomas has not yet said whether he will recuse himself from the Jan. 6-related cases, as he has done with similar cases in the past.

  • His impartiality is in question because his wife, conservative activist Ginni Thomas, repeatedly told Trump's chief of staff, Mark Meadows, to maintain efforts to overturn the 2020 election results.

Flashback: Trump and his allies were hoping the Supreme Court would help overturn the 2020 election results as a result of his baseless claims of election fraud.

  • Justice Thomas has not publicly weighed in on the 2020 election. He did, however, dissent in February 2021 when the Supreme Court rejected Trump's challenges to the election.

Of note: Public opinion of the court fell to historic lows this year following landmark rulings on abortion, affirmative action, LGBTQ rights and environmental regulations.

  • A series of undisclosed lavish gifts and other benefits received by Justices Thomas and Samuel Alito and financial arrangements involving Justices Sonia Sotomayor and Neil Gorsuch generated political pressure on the court to formally adopt a code of conduct for justices.
  • President Biden nominated one justice who is part of the court's liberal minority. Trump nominated three of the justices that make up the court's conservative majority.

Go deeper: Court rejects Trump's request for immunity in E. Jean Carroll defamation suit

Editor's note: This story was updated with new developments.

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