This afternoon the Supreme Court docket agreed to review the Colorado Supreme Court decision disqualifying Trump from showing on the state’s poll within the 2024 presidential election, beneath Part 3 of the Fourteenth Modification. The case shall be heard on an expedited schedule, with oral arguments scheduled for February 8, a little bit over one month from now. The justices seemingly selected to listen to the case shortly in order to ensure it will get resolved earlier than we go an excessive amount of additional into the 2024 election cycle.
Considerably, the Court docket has not restricted the questions introduced. Which means the justices might probably think about the total vary of points raised by the case, together with whether or not the January 6 assault on the Capitol qualifies as an “rebel,” whether or not Trump’s actions quantity to “partaking” in rebel, whether or not the president is an “officer of the US” coated by Part 3, whether or not Part 3 is “self-executing,” whether or not it’s a “political query,” and whether or not Trump acquired satisfactory due course of within the state court docket. There could also be some extra procedural questions, as properly. However maybe the Court docket will subject narrowing questions introduced earlier than briefs are due.
Most observers count on the Court docket to overturn the Colorado resolution. Which may properly occur; it might even be the almost definitely end result. However I feel many are underrating the chance that the justices will affirm the Colorado ruling. The latter relies on sturdy reasoning, together with from an originalist viewpoint. And to the extent the justices could also be motivated by reputational concerns, disqualifying Trump is the proper alternative for them to indicate as soon as and for all that they aren’t adjuncts of the GOP and particularly not the “MAGA Court docket.” In my view, a lot of the left-wing criticism of the Court docket is incorrect or over overblown; however my opinion will not be what’s decisive for the Court docket’s public and elite standing.
After all, I am removed from an ideal prognosticator of what the justices will do. We’ll seemingly get a greater sense of the place they stand through the oral argument.
I assessed the Colorado resolution (which I feel is basically right) here. I went over the problems at stake within the Part 3 litigation in additional element in this article (written earlier than the Colorado resolution). In a September Lawfare article, I addressed numerous pragmatic and ethical issues raised by disqualification, similar to claims that it might be anti-democratic and would possibly create a harmful slippery slope.
