On Thursday, the nine justices are set to deliberate a case with profound implications for the 2024 election – concerning the Colorado Supreme Court’s action in barring Trump from the ballot due to the “insurrectionist” clause of the 14th Amendment. By early next week, the Supreme Court may also weigh another appeal from Trump, challenging a lower court’s dismissal of his claim to absolute presidential immunity regarding his endeavors to overturn the 2020 election on the basis of unfounded voter fraud allegations.
These two significantly consequential and politically charged cases could thrust the justices into the heart of a presidential election in a manner unprecedented since the contentious 2000 election, which saw the court resolve the dispute in favor of then-Texas Governor George W. Bush over Vice President Al Gore. The repercussions of this foray into campaign politics may reverberate even longer than the quarter-century-old case that concluded a bitter post-election period. With Trump’s persistent refusal to acknowledge the norms and outcomes of elections, it would not be surprising if the court finds itself drawn deeper into partisan conflict before or after the presidential election in November, assuming Trump secures the Republican nomination.
The notion of the Supreme Court being immune to political influence has long been considered somewhat quaint, given its history of grappling with politically charged issues such as slavery, voting rights, civil rights, desegregation, interracial and same-sex marriage, healthcare, and more recently, abortion. However, no modern president has pushed the boundaries as Trump has in dispelling the idea that judges are duty-bound to rise above partisan interests and uphold the rule of law.
Trump, who has faced criminal charges on four occasions, consistently seeks to undermine or discredit institutions tasked with holding him accountable, checking his authority, or challenging his frequently distorted alternative narratives. He embroils these institutions in his rhetoric and falsehoods, tarnishing their purported reputation for impartiality.
Whenever Trump suffers electoral defeat, he cries foul play; when the media reports facts, he denounces it as “fake news”; when investigated, he cries witch hunt; when indicted, he accuses the grand jury of bias; when he loses a legal battle, he condemns the entire judicial system as corrupt. The narrative of victimhood now forms the crux of a presidential campaign centred on the belief that he is politically persecuted and drives his determination to seek retribution during a potential second term.
Although Trump is not expected to attend Thursday’s oral arguments at the Supreme Court, the justices anticipate his tactics. During his prominent trials, the former president has consistently sought to undermine the legitimacy of courts and judges. For instance, during his civil fraud trial in New York, he frequently clashed with the judge, disparaging him, his staff, and the case during breaks outside the courtroom. In a recent defamation case brought by writer E. Jean Carroll, Trump abruptly left the trial just before a jury awarded her a significant $83 million victory. Following a rejection of his unprecedented claims of total immunity by an appeals court in Washington, DC, Donald Trump Jr., the former president’s eldest son, attacked the integrity of the unanimously ruling judges. In several cases involving the senior Trump, judges have imposed gag orders to preserve the integrity of the proceedings.
The sway Trump holds over his supporters is such that millions readily embrace his falsehoods, leading them to believe that key government institutions are corrupt. This undermines America’s political system and the rule of law. Consequently, many voters, particularly within his political base, downplay the severity of Trump’s alleged transgressions. According to a CNN poll conducted late last month, 49% of Republicans believe Trump did nothing wrong in the aftermath of the previous presidential election. While 40% deemed his actions unethical, only 11% considered them illegal.
Trump’s success in portraying his legal troubles as part of a vast conspiracy resonates with individuals disillusioned with the government or distrustful of institutions, authority figures, and experts. This poses a significant threat to the long-term health of the country’s democratic institutions. A legal system perceived as biased and warped cannot maintain the confidence of its citizens. The perception that law enforcement has unfairly targeted Trump has further solidified support for him among his followers.
For Chief Justice John Roberts, the prospect of being embroiled in the hyper-politicized arena of a presidential election is a nightmare. He has consistently sought to shield the high court from reputational harm amidst the nation’s polarized politics. However, an election-related case involving Trump, during a time of heightened partisan acrimony compared to the aftermath of the 2000 election, could be particularly grave – especially if any rulings go against Trump. Unlike Al Gore, who gracefully accepted his electoral defeat following the Bush v. Gore ruling, Trump has openly criticized adverse judgments from the high court in the past. He has even insinuated disloyalty on the part of the three justices he nominated – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – for failing to adhere to his wishes. This underscores Trump’s transactional approach and his disregard for judges’ duty to uphold the law.
“I’m not happy with the Supreme Court. They love to rule against me. I picked three people. I fought like hell for them,” Trump remarked in his infamous January 6, 2021, speech preceding the Capitol insurrection – incidents at the core of the cases now looming over the court. “It almost seems that they’re all going out of their way to hurt all of us and to hurt our country. To hurt our country,” Trump lamented, referring to the justices.
Ahead of the Iowa caucuses last month, Trump reiterated these sentiments, seeking to sway conservative justices on the Supreme Court regarding the Colorado case. He alleged that judges appointed by Democratic presidents exhibited blatant partisanship and complained that those selected by Republican presidents did not reciprocate. “When you are a Republican judge, and you have been appointed by, let’s say Trump, they go out of their way to hurt you, so that they can show that they have been fair, fair, honorable people. It’s an amazing difference,” Trump asserted. “It’s a different wiring system or something – but all I want is fair, I fought really hard to get really three very, very good people … I just hope that they are going to be fair because the other side plays the ref.”
Any judge diverging from Trump’s viewpoint risks becoming a target of his ire. Roberts attempted to shield the judiciary from such politicization in 2019, asserting that there are no “Obama judges or Trump judges, Bush judges or Clinton judges,” but rather dedicated judges striving to dispense equal justice. Since then, Trump has maintained a strained relationship with the high court, particularly evident in cases related to the 2020 election. Reports suggest that Roberts grew increasingly skeptical of policies from the Trump administration that stretched legal boundaries. For instance, Roberts reportedly switched his vote to deliver a ruling against Trump’s attempt to add a citizenship question to the 2020 census form. Additionally, he brokered majorities against Trump’s efforts to withhold his personal financial records from the Manhattan district attorney and congressional committees.
Following Trump’s presidency, tensions between him and the high court persist. The justices rejected Trump’s attempt to block the release of presidential records to a House committee investigating the January 6 attack. While these cases may not directly impact the court’s rulings in the Colorado case or the potential consideration of Trump’s immunity appeal, history suggests that Trump’s response will reflect his deeply ingrained sense of injustice and suspicion towards accountability institutions, along with his selective interpretation of the law.
