Dec 21, 2023 - Politics & Policy

Supreme Court showdown with Trump

The Supreme Court building is shown on Nov. 13. Photo: Mandel Ngan/AFP/Getty Images

The Supreme Court is stuck with Donald Trump, whether the justices like it or not.

The big picture: The court may not have any real way to avoid a starring role in the 2024 campaign, or to shield itself from the constant firestorm that swirls around Trump.

  • Almost no one in politics has managed to escape that maelstrom undamaged, and that's bad news for the court at a time when its seams are more visible than they've been in decades — already under fire from the left, divided internally on the right and losing its luster with the public.
  • "There's no winning," Notre Dame law professor Derek Muller told Axios.

Driving the news: Legal experts from all over the ideological spectrum expect that the court will soon agree to hear the dispute over whether Trump can be on the ballot when Colorado holds its GOP primary.

  • The justices have already agreed to hear a separate case challenging some of the charges against Jan. 6 rioters, which has indirect implications for Trump's Jan. 6 prosecution.
  • And special counsel Jack Smith has asked them to rule quickly on Trump's claims that he's immune from prosecution because he was president.

Between the lines: Under normal circumstances, or in earlier times, the court would likely look for an escape hatch from these cases — a way to resolve whatever absolutely needs to be resolved while setting as little precedent as possible.

  • That's roughly how the justices handled cases over Trump's tax records, and most of the justices were not eager to delve into the Hail Mary lawsuits he filed challenging elements of the 2020 election.

But there simply may not be any good escape hatches here.

  • They'll almost certainly have to say that Trump is or isn't allowed on Colorado's ballot — a very easy-to-understand win or loss for Trump.
  • There are only so many ways to do that without getting into the biggest questions the case raises — whether the Constitution does, in fact, ban people who participated in an insurrection from holding public office; whether that applies to the president; and whether Trump's role in Jan. 6 fits the bill.

In Smith's cases, the court is being asked to set important precedents on an accelerated timeline.

  • Agreeing to move quickly means the court's work will be under the microscope in the heat of campaign season, when the court is already battling public perception that it's simply a political exercise.
  • But moving slowly would be a de facto win for Trump. His goal is to delay this prosecution until after the election, hope he wins, and then get the Justice Department to simply drop the case.
  • "Delay is an action," Muller said.

What we're watching: Trump will of course mount a martyrdom campaign around any ruling, even procedural ones, that don't go his way. He's never hesitated to attack judges, or people he appointed, before.

  • Democrats, meanwhile, are already furious with the court, both for overturning Roe v. Wade and over ethics questions surrounding Justices Clarence Thomas and Samuel Alito.
  • Thomas has already faced calls to recuse himself from cases related to Jan. 6, due to his wife's involvement in the Trump team's efforts to challenge the 2020 election results. So far he has given no indication that he will sit out either of the cases related to Smith's prosecution.

And tensions appear to be high internally, as well.

  • The New York Times' behind-the-scenes reporting on the end of Roe v. Wade reinforced that Chief Justice John Roberts is only sometimes able to steer the court's conservative majority toward his preferred style of incrementalism and reputational caution.

The bottom line: "There's a sense in which the cases are bigger than Trump," Muller said.

  • Whatever the court decides on presidential immunity will be a critically important precedent, just like similar cases involving Presidents Nixon and Clinton.
  • And yet, these cases can't — and won't — be decided outside the extremely Trump-specific context of the coming election year.

"In the past, any one of these cases probably would have been fatal to a candidate," Muller said.

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