The U.S. Supreme Court has signaled that it’s moving fast with former President Donald Trump’s appeal that seeks to overturn the Colorado Supreme Court ruling barring him from the ballot on 14th Amendment grounds.
A note accompanying the U.S. Supreme Court’s schedule for Feb. 8, the day the high court is set to hear the first oral arguments in the case, indicates that it intends to announce written opinions on the very same day.
While the substance of the opinions has not been revealed, the declaration that they will be published on Feb. 8 is significant as it indicates that the Supreme Court views the case as having significant legal importance and warrants expedited consideration.
The question that the former president’s attorneys presented for consideration in their Jan. 3 petition was whether the Colorado Supreme Court incorrectly ordered President Trump excluded from the 2024 presidential ballot.
What Will SCOTUS Do?
The Colorado high court, which is composed entirely of Democrat appointees, determined in a 4–3 ruling in December that President Trump had engaged in an “insurrection” in the context of the Jan. 6 breach of the U.S. Capitol, and so he is ineligible to run for president.
The ruling was based on an interpretation of Section 3 of the 14th Amendment, which bars any former oath-taking “officer of the United States” who “engaged in insurrection” from “holding any office, civil or military.”
Legal experts have said there are several ways the Supreme Court could reverse the Colorado decision without weighing into the substance of whether President Trump “engaged in insurrection” on Jan. 6.
“There’s a fairly good chance that they'll find a way to duck that,” Harvard Law professor emeritus and constitutional scholar Laurence Tribe told ABC News.
One such way would be for the Supreme Court to say that the U.S. President isn’t an “officer of the United States” but part of the executive branch and rule that Section 3 of the 14th Amendment simply doesn’t apply.
The nation’s top court could also vacate the Colorado court’s decision and instruct it to revisit the case at a later date. Adam Unikowsky, an experienced Supreme Court litigator at Jenner & Block LLP, wrote in his newsletter that he gives this outcome a 40 percent chance.
“More boldly, the Court could hold that the conjunction of Trump’s tweets and speeches, the January 6 report, and expert testimony were not ‘clear and convincing evidence’ that Trump engaged in insurrection,” Mr. Unikowsky wrote.
Whichever path the Supreme Court chooses, Mr. Unikowsky said that writing an opinion in the case will be a formidable challenge.
“It’s a head-scratcher,” he said.
‘Chaos And Bedlam’
In their opening brief filed with the U.S. Supreme Court on Jan. 18, President Trump’s attorneys asked the high court to reverse the Colorado ruling, arguing that other states are following suit with similar 14th Amendment-based legal challenges and that preventing Americans from being able to vote for him in the 2024 Republican primary would “unleash chaos and bedlam.”
The attorneys revealed in the brief that efforts are underway in over 30 states to keep President Trump off the ballot, all based on the theory that he somehow engaged in an insurrection and so should be disqualified from holding office under Section 3 of the 14th Amendment.
The logic of applying this section of the Constitution is based on the presumption that the Jan. 6, 2021 incident was an insurrection in which President Trump supposedly engaged by encouraging his supporters to protest at the U.S. Capitol against the certification of electoral college votes in what he insisted was a “rigged” election.
In their brief, President Trump’s attorneys argued that the Colorado Supreme Court’s disqualification ruling was “based on a dubious interpretation” of the 14th Amendment while relying heavily “on a hearsay congressional report and experts of dubious reliability.”
President Trump, who’s the frontrunner by far for the 2024 Republican presidential nomination, said in a recent appearance on Fox News's Sean Hannity that he’s confident that the Supreme Court “is going to say, ‘We’re not going to take the vote away from the people.’”
National polls show President Trump enjoys a commanding 55.1-point lead over his chief rival, former governor of South Carolina, Nikki Haley.
“Most Court watchers think the justices will blink and find a way to avoid ruling against the former president,” Kent Greenfield, a law professor and former Supreme Court law clerk, wrote in a recent op-ed for WBUR. “To bar him would require a nervy assertion of judicial authority.”