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Roula Khalaf, Editor of the FT, selects her favourite stories in this weekly newsletter.
There can be no more fateful decision for America’s highest court than to rule on whether a presidential candidate is eligible to run for office. It is for that reason that most judicial experts expect the US Supreme Court will find a way of sidestepping a clear cut ruling on whether Donald Trump can be on the ballot this November.
The court is still suffering the fallout from its 5-4 decision to stop the 2000 Florida presidential recount in the Bush vs Gore case. That ruling, in which the narrow conservative majority lined up behind the Republican George W Bush against the Democrat Al Gore, created the impression of a partisan court. Public trust in the Supreme Court has fallen sharply since then.
Today’s court has a 6-3 conservative majority, which ought to be of comfort to Trump’s lawyers. Even a liberal court, however, would think twice about removing Trump from the race. In addition to weighing the legal merits of the argument, which justices will hear on Thursday, the court has an incentive to protect its institutional standing.
On its merits, however, the Colorado high court has reasonable grounds for removal of Trump from the state’s primary ballot. The court ruled that Trump was in violation of section three of the US constitution’s fourteenth amendment, which was adopted after the American civil war. The clause bans oath-taking officers from public office if they have participated in an insurrection.
Trump’s role in the January 6 2021 storming of Capitol Hill would seem to fit what the law’s framers had in mind. That said, his team can argue that there is a high burden of proof, which Trump’s actions did not meet. Trump’s legal team also says that the ban excludes a former or current US president since that role is not explicitly spelt out in section three. This argument is less plausible. If the highest officer in the land does not qualify then the law would make no sense at all.
The Trump legal team also argues that section three only applied to officers already convicted in a criminal court. On the most originalist meaning of the text, everyone at the time understood that the ban would include Jefferson Davis, the former president of the confederacy that rebelled against the union, even though he had not been convicted. Even here, though, the context can be debated.
The Trump team’s final argument is that the law was only meant to apply to civil war rebels. This is disputable based on what the law’s drafters intended. In short, most of the arguments tilt towards a section three application to Trump. How, then, could this Supreme Court overturn Colorado’s ruling?
The answer is that the justices could quite consistently uphold Colorado’s ban yet leave each of the other 49 states to reach their own judgments. This federal interpretation of US elections is in keeping with the constitution, in which states are given autonomy to apply electoral rules as they see fit.
Whichever way the Supreme Court decides, two things should be kept front of mind. The first is that the law will rightly be seen as a hollow mockery unless it applies to the most powerful people in the land. Trump’s team has argued that he has legal immunity from criminal charges over anything he did as president. This week a US federal appeals court unanimously rejected that argument. The Supreme Court must make it explicitly clear that Trump is subject to the same law as everyone else. Anything less could prove fatally damaging to its standing.
Second, the ultimate arbiters of America’s political fate are its voters. No court can provide a lasting remedy to what is at heart a political crisis.
