Confidence in the Supreme Court has fallen to a historic low. Critics point to the court’s decision in Dobbs v. Jackson Women’s Health Organization last term, which overturned Roe v. Wade and triggered a heightened abortion debate and a state legislative free-for-all around the country.
And then there was the court’s weak response to questions about the justices’ standards of conduct, where despite strong evidence that the current system isn’t working, the court continued allowing individual justices to decide the propriety of their own ethical decisions.
Looking ahead, the focus on the court will intensify as it considers several highly charged political cases, three of which relate to former President Donald Trump.
First, on Dec. 22, the court rejected Special Counsel Jack Smith’s request to fast-track consideration of Trump’s claim of immunity from prosecution in his federal 2020 election interference case. Trump maintains that he is immune from prosecution for crimes he may have committed while president and seeks dismissal of those claims. U.S. District Judge Tanya Chutkan rejected the argument, Trump appealed and the case has been stayed pending appeal.
Everyone understands that the immunity question will ultimately have to be decided by the Supreme Court, so Smith tried to skip an intermediate appeal and take the issue directly to the high court. The Court’s refusal to accept the case at this point and to first require a hearing and ruling in the Court of Appeals will likely delay the scheduled March 4 trial date for the election interference case.
Second, a divided Colorado Supreme Court ruled last week that Trump could be barred from that state’s 2024 Republican primary ballot since he engaged in insurrection, in violation of part of the 14th Amendment – a Reconstruction-era provision enacted to hold members of the Confederacy accountable after the Civil War.
Trump’s lawyers will appeal that ruling to the Supreme Court, pointing to, among other things, that he has neither been charged with nor convicted of insurrection. If the Court agrees to hear the case — which is likely — its ruling on the issue could impact not just Trump’s entitlement to appear on the Colorado primary ballot, but several similar ballot challenges filed against Trump around the country.
Third, the court has agreed to hear the case of Joseph Fischer, a former police officer charged with obstructing an official proceeding at the Capitol building on Jan. 6, 2021. Fischer argues that federal prosecutors overreached when they charged him under a statute usually reserved for people who tamper with documents and evidence. The challenged charge has been used against more than 300 other Capitol rioters and forms the basis for two charges against Trump in his D.C. federal case. The court’s ruling in the Fischer case will likely be issued sometime in June 2024 — even deeper into the election cycle.
We expect the court to reject Trump’s immunity claim and overturn the Colorado Supreme Court on the Trump ballot listing question. The use of the obstruction law to prosecute Jan. 6 activities appears to present a closer question. But no matter the final ruling in any of the cases, we urge the justices to make an extra effort to make clear that it is the law and not politics that drives their decisions.
