It’s hard to say if SCOTUS will keep Trump on the 2024 ballot

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Magistrates of the Supreme Court.
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  • The Supreme Court agreed to review Colorado’s decision to exclude Trump from the 2024 primary election.
  • The Court’s ruling could determine the outcome of the 2024 presidential election.
  • The experts spoke to Business Insider about the challenges facing the Court.

The nine justices of the United States Supreme Court have before them a monumental decision.

He The Supreme Court agreed Friday night to review the Colorado Supreme Court’s decision to remove former President Donald Trump from the state’s ballot because he participated in an insurrection.

The Court also decided to accelerate its consideration and will hear oral arguments on February 8.

But no one knows what the judges’ decision will be.

“They will be thinking about the ramifications of this decision in many ways, including the ramifications for the Court itself and the ramifications for the country as a whole,” said Carolyn Shapiro, founder of the Chicago-Kent Institute on the United States Supreme Court. she told Business Insider.

Legal experts who spoke to Business Insider offer varying perspectives on how the justices — three appointed under the Trump administration — could determine the fate of Trump’s eligibility at the polls.

Kevin McMahon, a professor of political science at Trinity College who is currently writing a book about the Supreme Court, told BI that there is a lot of uncertainty about how the justices will rule, no matter how partisan the Court is accused of.

He pointed to former conservative federal judge J. Michael Luttig, who told MSNBC in December of last year that the Colorado case is not a partisan issue.

“It will be very clear to the American public that it is the United States Constitution that disqualifies the former president from holding higher office, if he is disqualified,” Luttig said. “It’s not President Joe Biden. It’s not the Democrats. It’s not the anti-Trumpers.”

Shapiro said the same thing: “There is no certainty” about the results.

“There are very, very strong arguments, including originalist arguments, that it is disqualified,” he said, referring to a legal theory in which the Constitution is interpreted as it was intended when it was written. “But the arguments that he is not disqualified are not entirely frivolous.”

The question of Trump’s ineligibility revolves around a section of the 14th Amendment that states:

“No person shall be a Senator or Representative in Congress, or an elector for President and Vice President, or hold any office, civil or military, under the United States or under any State, who, having previously taken the oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, in support of the Constitution of the United States, shall have participated in an insurrection or rebellion against the same, or given aid or comfort to their enemies. But Congress may, by a two-thirds vote of each House, remove such handicap.”

The Colorado Supreme Court and the attorneys who brought the lawsuit colorado lawsuit Those seeking to ban Trump from the primary election have argued that the law applies to Trump because of his actions on January 6, 2021.

“We believe the case on the facts of the law is strong,” Donald Sherman, one of the lead attorneys behind the Colorado lawsuit, previously told BI. “We also think that the case based on the facts of the law is an originalist case for the disqualification of Donald Trump.”

One of the arguments in favor of Trump is that the presidency should not be treated the same as any other office in the United States, Shapiro said.

a judge of a colorado lower court He initially ruled that Trump is an insurrectionist; However, the original drafters of the 14th Amendment “did not intend to include the President as ‘a united states officer

The Colorado Supreme Court ultimately overturned that conclusion.

Maine’s secretary of state has said Trump is not eligible for ballotand other states have pending litigation.

What could the Supreme Court do?

The Court could decide to keep Trump on the ballot or ban him entirely.

But Shapiro adds that there are also more limited ways the Court could rule.

“The Court could rule very narrowly so as not to affect other types of elections. There are ways they could rule that would limit this particular position to the presidency or perhaps the vice presidency, for example. There are also ways they could issue a ruling that allows them to avoid deciding on the merits at all,” he said.

Neama Rahmani, a former federal prosecutor and chair of the West Coast Trial, argued that the outcome is clear: Trump will remain on the ballot in 2024.

“The fact that the Supreme Court justices agreed to take this case less than a week after (Trump) filed an appeal and expedited oral argument to February 8 and expedited the briefing… I mean, no you need to be an expert or read the tea leaves to know which direction this is going,” Rahmani told BI. “Trump is going to win.”

Even if conservative justices have an originalist interpretation of the amendment, there is no real precedent for how the 14th Amendment was enforced, Rhamani said.

“This has never really been litigated,” he said. “We all know what the 14th Amendment says: If you participate in an insurrection, you can’t hold public office. But how is it enforced? Who does it? Is it a Secretary of State? Is it an unelected judge? ( Trump) Do they have to be impeached and convicted? Is an act of Congress required? Impeachment? We don’t know how the 14th Amendment is enforced and who enforces it.”

Shapiro and McMahon, however, were much more skeptical about any predictions about the Court’s ruling.

Shapiro called from Washington, D.C., at an annual meeting hosted by the Association of American Law Schools. Trump’s fate in 2024 has been an issue that repeatedly worries professors and lawyers, she said.

“It’s actually quite fascinating to talk to other constitutional lawyers and constitutional law professors,” he said. “Nobody knows what’s going to happen.”

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