Betting the odds on Trump’s Supreme Court case
Guessing how the Supreme Court will handle the political grenade that's been lobbed into their chambers is no easy task.
When the Colorado Supreme Court ejected Donald Trump from the state’s Republican primary ballot next year, it set off what will be the biggest political story in the first quarter of 2024.
Whether the former president engaged in insurrection and whether Section 3 of the 14th Amendment bars him from running for president is a complicated legal question. Win, lose or draw, how the Supreme Court decides that question is going to shape American politics in 2024 and beyond. So here is your handy guide to what the Supreme Court could do and how it could affect the 2024 presidential race.
3-1 odds: Reversal on due process grounds
The most likely outcome is that the Supreme Court will overturn the Colorado decision on the grounds that the procedure used to determine whether Trump is disqualified under Section 3 was constitutionally inadequate. But if the court holds that Colorado’s procedure was inadequate, it will then have to describe what procedures would be adequate — a roadmap, in other words, to correctly disqualify a candidate under Section 3. Expect a Supreme Court decision on due process grounds to be the opening gun for a flurry of lawsuits aimed at disqualifying Trump from the general election ballot.
5-1 odds: Affirm
If this were a less unique case, the odds on affirming would be much higher because the Supreme Court has limited scope for reviewing lower court decisions, especially state court decisions. It cannot, for example, throw the case out on the grounds that Colorado state law doesn’t allow for this kind of challenge to a candidate in a primary — an argument considered and rejected by the Colorado Supreme court. Affirming this decision would result in lawsuits in all 50 states and the District of Columbia designed to remove Donald Trump from the ballot.
8-1 odds: No insurrection
Coming up with a legal definition of “insurrection” and holding that the events of Jan. 6, 2021, did not qualify is probably the easiest, least messy way for the Supreme Court to make the whole problem disappear. Since courts are supposed to resolve cases on non-constitutional grounds whenever possible, expect even the liberal wing of the court to thoroughly consider this option.
10-1 odds: Reversal with no majority decision
In this scenario, five Supreme Court justices vote to overturn the Colorado result but can’t agree on why. This is a recipe for more, messier litigation, meaning that the court will undoubtedly be required to revisit the issue before the November election or — worse — after the November election, as it did in Bush v. Gore in 2000.
20-1 odds: 4-4 decision
Justice Clarence Thomas recuses himself because of his wife’s involvement in the lead-up to Jan. 6th and four of the remaining judges vote to overturn while four vote to affirm. This leaves the Colorado decision in place — and Trump off the ballot there — and opens a legal-free-for-all with the promise of electoral college mayhem to follow.
25-1 odds: Throwing out the case because Section 3 is not self-executing
While this argument has been made, it’s not very likely to succeed for reasons both historical and legal. Both conservative and liberal justices are concerned about the court’s reputation and neither will be eager to go down this road.
25-1 odds: Grant and not expedite
Granting cert and then pushing a decision out to 2025 would either make the court’s problem disappear or make it infinitely worse. If Trump is not elected president, the Supreme Court could dodge the question entirely by dismissing the case as moot. But if Trump is elected president, the court would still have to issue a ruling. And if that ruling is that Trump is ineligible under Section 3, it would spark the biggest constitutional crisis in American history.
25-1 odds: Holding that the presidency is not covered by Section 3
This outcome would be rated lower had the Colorado district court not adopted it when it originally ruled that Trump could remain on the primary ballot. This argument relies on a very strained reading of Section 3 and was rejected by the Colorado Supreme Court. It is unlikely to be adopted by the U.S. Supreme Court.
25-1 odds: Exclusive federal question
This one is a wildcard. The court might decide that disqualification under Section 3 can’t be decided in state courts. Normally, it is up to Congress to designate certain areas as exclusive federal questions that can be heard only in federal courts. However, presidential qualifications do seem to be a uniquely national question that should not be decided in piecemeal, probably contradictory, decisions in each of the 50 states and the District of Columbia.
50-1 odds: Trump didn’t engage in insurrection
This would be a very, very tough argument for the Supreme Court to adopt, assuming that it holds the events of Jan. 6 amounted to insurrection. This finding was made in the trial court and it was adopted by the Colorado Supreme Court. The Supreme Court could overturn this factual finding only if it found it to be “clearly erroneous.”
99-1 odds: The president is not an officer of the United States
This argument has been made but barely satisfies the snicker test. Apart from the logical problems with holding that the president is not an officer of the United States, the Supreme Court would be trading one messy can of worms for another, placing the presidency beyond the reach of many previously applicable laws.
99-1 odds: The court would not grant cert
Almost unimaginable. This would leave the Colorado decision in place and would open the floodgates of legal and electoral chaos. Normally, it is impossible to say which cases the Supreme Court will or will not take. But it is taking this one.
As you can see, guessing how the Supreme Court will handle the political grenade that's been lobbed into its chambers is no easy task. There is one prediction, however, that’s a dead cert: Whatever the Supreme Court does, about half the country will be furious.
If anyone offers to bet you that 2024 will be calm, peaceful and full of political good cheer, take that bet, no matter what the odds.
Chris Truax is an appellate lawyer in San Diego and a member of the Guardrails of Democracy Project.