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The Supreme Court may decide the 2024 election. Here’s how

Dec 20, 2023, 5:21 PM

The Supreme Court justices face several disputes over the fate of GOP frontrunner Donald Trump. (Ph...

The Supreme Court justices face several disputes over the fate of GOP frontrunner Donald Trump. (Photo illustration by Will Mullery/CNN/Getty Images)

(Photo illustration by Will Mullery/CNN/Getty Images)

(CNN) — The Supreme Court has become the ultimate force in the 2024 presidential election as the justices face several disputes over the fate of GOP frontrunner Donald Trump.

The court has been at the center of several election controversies this century, from deciding the winner itself in 2000 in a controversial decision that gave the presidency to George W. Bush to having a vacancy on the bench be a top vote draw for Trump in 2016 and rejecting last-gasp GOP attempts to help Trump cling to power in 2020.

But now the justices will have to determine – quickly – if the former president is even eligible to be on the ballot and whether he’s immune to prosecution from special counsel Jack Smith, both controversies stemming from his efforts to overturn the 2020 election leading up to the January 6, 2021, US Capitol attack.

“These are cases that the Supreme Court typically has the ability to duck, but that are really presenting themselves as national controversies before the court rather than the court reaching out to grab controversial issues,” Justin Levitt, an election law specialist at Loyola Law School, told CNN.

“There are very few places to duck,” he said.

This is on top of the already blockbuster term where the court will rule on if a safe and popular abortion drug will be readily available in states where abortion is legal, the scope of the Second Amendment and the future of environmental regulations. All those policy issues will also impact the ballot box.

All this comes at a time where the public’s opinion of the Supreme Court remains at historic lows and ethics concerns continue to dog the justices. Chief Justice John Roberts’ attempt to head off criticism on ethics last month was quickly derided as toothless.

In Colorado, the 4-3 majority on the state Supreme Court ruled Tuesday said that Trump was constitutionally ineligible to run in 2024 because the 14th Amendment’s ban on insurrectionists holding public office covers his conduct on January 6.

“President Trump incited and encouraged the use of violence and lawless action to disrupt the peaceful transfer of power,” the justices wrote in the 134-page majority opinion.

Anticipating Trump’s appeal, the Colorado justices paused their ruling until January 4. Once Trump inevitably asks the justices to review the ruling, the Colorado court’s pause will be extended until the nation’s highest court announces whether it will take the case – and, if it does, until it hands down its final decision. That means the US Supreme Court could be determining what happens more for the general election, not the primary ballot.

“We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these unAmerican lawsuits,” Trump campaign spokesperson Steven Cheung said in a statement.

When Trump appeals, the justices will have the question of the 14th Amendment’s so-called insurrectionist clause squarely on its desk.

“What’s remarkable about this decision is they’ve addressed every single issue that’s been raised against it, knowing that this was going to go before the US Supreme Court,” Nick Akerman, a former Watergate prosecutor, said on CNN’s “News Central” of the Colorado ruling.

“They’re also going to take this issue very seriously because it doesn’t just impact Colorado. It impacts all 50 states,” he added. “So this is going to have to be decided by the Supreme Court.”

Does Trump have immunity from January 6 prosecutors?

Trump’s pre-trial strategy in his federal election subversion case has so far largely revolved around an effort to get courts to dismiss the charges based on novel claims that presidential immunity protects him from being criminally prosecuted for alleged crimes he committed over the 2020 election results.

The trial court judge overseeing his criminal case rejected those arguments earlier this month, prompting Trump’s team to ask the federal appeals court in Washington, DC, to review that decision.

Seeking to thwart Trump’s attempt to mount a protracted legal battle on the immunity question that could upend the March 4 trial date, Smith brought an unexpected twist to the saga last week when he asked the high court to step in now to resolve the immunity question and also to decide whether he is protected by double jeopardy.

“It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected,” Smith told the justices, adding that “only this Court can definitively resolve them.”

Trump opposes the idea.

Even if the Supreme Court declines to examine the immunity question right now, the issue will land before them early next year. The DC Circuit has said it will expedite its review of Trump’s appeal, and the court has scheduled oral arguments in the matter for January 9.

In another case that could have salience for Smith’s team as they litigate the immunity question, a federal appeals court in Atlanta was critical earlier this week of the type of electioneering Trump and his allies engaged in after the 2020 election.

The 11th US Circuit Court of Appeals rejected on Monday an attempt by former Trump White House chief of staff Mark Meadows, who is also a defendant in the Georgia case, to move his criminal case to federal court. Meadows had argued that his conduct that gave rise to his charges were done as part of his official government role.

“Meadows also cannot point to any authority for influencing state officials with allegations of election fraud,” the three-judge panel said in an opinion authored by a noted and respect conservative jurist. “Nor did Meadows’s official duties include interference with state election procedures.”

Those conclusions could aid Smith’s team as they argue to the courts in Washington that Trump’s post-election conduct was not part of his official duties as president and therefore should not shield him from prosecution.

“There is no question that the president has immunity for acts undertaken in his or her official capacity,” Levitt said. “And I think there’s also no question that the things that Donald Trump is currently facing criminal indictment for not undertaken in his official capacity.”

Justices will scrutinize obstruction law – another key January 6 issue

The Supreme Court agreed last week to consider whether part of a federal obstruction law can be used to prosecute some of the people involved in the Capitol attack.

How the justices rule in the case could have a significant impact on Smith’s pursuit of Trump by potentially unravelling part of his case against the former president.

The case concerns just one man who was charged for his role in the attack, but how the justices rule could have a wide-reaching impact on the hundreds of other criminal cases DOJ has brought against other people involved in the attack. Among those people is Trump, whose charges in the federal election case include the obstruction one and three others.

Within a few hours of the court taking the case last week, the move started having a ripple effect across ongoing January 6 criminal cases.

At least 10 January 6 defendants have asked for modifications in their cases as the issue makes its way through the high court, including Ethan Seitz, who asked his trial-level judge to cancel his sentencing hearing set for January because of the Supreme Court case that’s now pending. His lawyers asked for his not to be sentenced yet “in the interests of judicial economy.”

Two dozen people have been sentenced under this obstruction charge alone, according to the US Attorney’s Office in Washington.

Dispute over gag order

The high court might also be asked by Trump to take up his challenge to a limited gag order issued against him in the federal election subversion case.

Earlier this month, the DC Circuit mostly upheld the gag order, which was first issued against Trump by District Judge Tanya Chutkan, who is overseeing his case. But the appeals court said the restrictions do not apply to comments made about Smith and narrows the prohibition Trump had for speaking about witnesses in the case, a change from the original gag order.

Trump’s camp has long said it would ask the Supreme Court to intervene in the matter if the lower courts maintained any portion of the order. Attorneys for the former president have argued that it represents an unconstitutional restriction on political speech from a presidential candidate.

“The district court lacks the authority to muzzle the core political speech of the leading candidate for President at the height of his re-election campaign,” they told the appeals court last month. “President Trump is entitled to proclaim, and the American public is entitled to hear, his core political messages.”

On Monday, the former president’s attorneys escalated their fight against the restrictions by asking the full DC Circuit to reconsider its recent ruling.

Should the appeals court decline the request, Trump’s next stop would be the high court, where a high-profile showdown over his speech could easily spill out onto the campaign trail.

“It’s not an ideal situation for anyone, but I think there’s no question that with any adverse judicial decision, Trump will turn it into campaign talk,” said Derek Muller, an election law professor at Notre Dame Law School.

Policy issues on the docket may also move the needle

Apart from the controversies directly concerning Trump that the justices could agree to review, the court’s docket this term is already stacked with several controversies that will weigh on voters’ minds as they head to the ballot box later next year.

They announced last week that they would hear a major case concerning access to the widely used abortion drug mifepristone.

Their decision to review lower court rulings limiting access to the drug represents their biggest foray into the reproductive rights sphere since they reversed Roe v. Wade last year – a ruling that invigorated Democrats in the 2022 midterm elections and will be another rallying cry for the party as the general election nears.

The court is also deciding a major Second Amendment case that could allow them to provide much-needed guidance to lower courts on how to examine gun laws under a new standard the conservative majority issued in 2022 that led some federal judges to strike down a host of gun laws.

And next month, the justices will hear a pair of cases that ask them to overturn decades-old precedent to scale back the power of federal agencies, a move that could curtail the federal government’s ability to issue regulations pertaining to the environment, immigration and health care.

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The Supreme Court may decide the 2024 election. Here’s how