The Supreme Court is preparing to weigh an unprecedented dispute over whether former President Donald Trump can be barred from state primary ballots, forcing the justices to convene during a time when the high court is not normally in session.
Each high court term, which spans from early October until the end of June, the nine justices usually take a break from hearing oral arguments between late January and mid-February. This term, however, is not a normal one for the Supreme Court, which is already scheduled to consider the monumental constitutional question of whether Trump is barred from appearing on state primary ballots across the nation.
Trump’s Supreme Court arrival comes into focus
Due to Trump’s four separate indictments, two federal and two state, his arrival to the Supreme Court was always somewhat of a foreseeable event for court watchers.
But there was not an immediate urgency for the justices to wade into Trump’s endless legal tumult until Dec. 19, when Colorado’s top court ruled to disqualify him from the state’s primary ballot under Section 3 of the 14th Amendment’s “insurrection” clause, finding he played a role in the Jan. 6 riot at the U.S. Capitol and reversing a lower court’s ruling that Section 3 did not apply to the presidential office.
Maine Secretary of State Shenna Bellows decided just days later that Trump could not appear on her state’s primary ballot under Section 3, which states that “no person shall be” elected if they “have engaged in insurrection or rebellion.” Trump filed an emergency petition against the Colorado decision in early January and the Supreme Court agreed on Jan. 5 to take up the case for Thursday, Feb. 8, an atypical day given that oral arguments are normally held on a Monday, Tuesday, or Wednesday.
A ‘very fast-tracked’ review of Colorado’s decision
Case Western Reserve University law professor Jonathan Entin told the Washington Examiner the Colorado dispute “is very fast-tracked,” adding that “typically once the court decides they’re going to hear a case, we’re talking about several months before the case is going to be argued.”
The case in question, Trump v. Anderson, is indeed on an abnormally fast track. Trump’s legal counsel already filed his opening briefs to the high court on Jan. 18, while lawyers for a group of six voters that sued to keep him off the ballot filed their briefs on Jan. 26.
The Anderson case is significant because it will likely lead to a decision on whether Trump can remain on the ballot in all 50 states, as numerous other litigants backed by the left-leaning Citizens for Responsibility and Ethics in Washington, among others across the country, have attempted to keep Trump off state primary ballots.
“I mean, a lot of important decisions have to get made outside the court in the next three months, so I think the court simply said, ‘OK, this is very important. This goes to whether a leading candidate for president is eligible to be on the ballot,’” Entin said.
Coupled with impending ballot certification deadlines, Colorado and Maine count their primary ballots on March 5, meaning the justices only have a short window to rule on whether Trump can or cannot appear on the primary ballot. Both state court decisions to remove him from the ballot have been paused pending the high court’s decision, despite two failed efforts by Maine’s secretary of state to ask a state court to review her decision ahead of the Supreme Court’s ruling.
Supreme Court’s timing collides with Trump’s art of delay
The Supreme Court’s “timing is a function of the importance that the court has attached to the case,” Entin said, adding, “frankly, I think that the court has done the right thing in saying we should take this case on a really fast track.”
“Whatever they’re going to decide, we should know sooner rather than later,” Entin said.
As for when the nine justices could decide the case, Entin was hesitant to speculate, but said, “I would be surprised if this case wasn’t decided well before St. Patrick’s Day,” which is on March 17.
Trump could also ask the nine justices if he has presidential immunity to dismiss his 2020 election subversion indictment; a three-judge panel for the U.S. Court of Appeals for the D.C. Circuit will soon rule on his argument that he was acting in his official capacity as president when he rallied his supporters to Washington, D.C., amid his post-election calls to halt certification of President Joe Biden‘s 2020 victory.
Albany Law School professor Raymond Brescia told the Washington Examiner that the Supreme Court “does not have to take that case,” noting that “precedent is very much against the former president on executive immunity.”
Likewise, it is foreseeable that Trump would petition the justices again if he were ever convicted in one of his four cases, across which he faces 91 charges in total — meaning the 14th Amendment challenge could be just the tip of the iceberg for what Trump cases could come before the Supreme Court.
Trump has fought aggressively to delay his trials at every step of the way and could see his 2020 election subversion trial delayed by up to six weeks due to the presidential immunity dispute pending before the appeals court. If Trump loses at the D.C. Circuit, his legal team could hope for a high court review in a bid to delay the trial even further.
Trump piles on top of an already jampacked term
Feb. 8 marks a busy and high-stakes day for Trump’s future, as well as for the Supreme Court’s already packed docket, as justices plan to release one or more opinions on cases that have already been argued this term just minutes before oral arguments in the Colorado dispute commence.
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It’s also possible the justices could resolve a dispute that is looming ahead of South Carolina’s June 11 primary for U.S. House candidates. That dispute involves a lower court ruling that ordered the state to redraw a coastal district that is held by Rep. Nancy Mace (R-SC).
If the high court upholds the lower court decision, it could give Democrats a chance at winning a congressional seat in a contentious election year in which Republicans hold a slim 219-213 majority.