A Ruling for Trump on Eligibility Could Doom His Bid for Immunity
Chief Justice John G. Roberts Jr. and his colleagues seemed ready on Thursday to start to rebuild the court’s reputation by presenting themselves as unified and apolitical.
He has had a bumpy ride of late, what with the leak of the decision overturning Roe v. Wade, an inconclusive investigation into that breach, a lonely concurrence in the decision itself and ethics scandals followed by a toothless code meant to address them.
All of this has contributed to dips in the Supreme Court’s approval ratings, as large segments of the public have increasingly viewed it as swayed by politics rather than committed to neutral principles and the rule of law.
Judging by the justices’ questions in arguments on Thursday over former President Donald J. Trump’s eligibility to hold office again, they will rule that Mr. Trump can remain on the primary ballot in Colorado and on other ballots around the nation — and by a lopsided, if not unanimous, vote.
But if the chief justice’s project of evenhanded nonpartisanship is to prevail, the court will have to rule against Mr. Trump in a separate case heading to the court, the one in which he claims absolute immunity from prosecution for his conduct leading up to and on Jan. 6, 2021.
Richard L. Hasen, a law professor at the University of California, Los Angeles, wrote in Slate that the outline of a “grand bargain” was coming into view.
“The Supreme Court unanimously, or nearly so, holds that Colorado does not have the power to remove Donald Trump from the ballot, but in a separate case it rejects his immunity argument and makes Trump go on trial this spring or summer on federal election subversion charges,” he wrote.
Legal experts said that the sheer number of arguments in the case argued Thursday, an appeal of a Colorado Supreme Court ruling knocking Mr. Trump off the state’s primary ballot, made a ruling in his favor from the justices probable.
“He seems likely to prevail if for no other reason than that the grab bag of reasons offered something for just about every justice,” said Michael Dorf, a law professor at Cornell, who added that Justice Sonia Sotomayor may be an exception.
“The challenge for Chief Justice Roberts and whomever he assigns the opinion will be finding a rationale that can garner five or more votes,” he said. “In recent cases, Roberts has sometimes had difficulty reining in the five justices to his right. Here, there will likely be something closer to consensus.”
Tara Leigh Grove, a law professor at the University of Texas, said the case concerning Mr. Trump’s eligibility and the one on his claim of absolute immunity may as a practical matter be linked.
“History tells us that the Supreme Court does better with the public — in other words, is seen as more legitimate — when it does not rule repeatedly just for ‘one side’ of the political aisle,” she said. “So I anticipate that the justices will welcome a kind of ‘split decision’ in these cases. That is, the court can rule that President Trump remains on the ballot, and yet has no immunity from federal criminal prosecution.”
Vikram Amar, a law professor at the University of California, Davis, who filed a friend-of-the-court brief in the Colorado case supporting neither party but expressing skepticism of some of Mr. Trump’s arguments, said he was disappointed with where the case seemed to be heading.
“Unfortunately, it seems the justices may be coalescing around some analytically weak arguments as a way of disposing of this case in a way they think will avoid expending the court’s scarce political capital,” he said.
Professor Amar added that the Colorado case should stand on its own but may not. “There’s no logical connection between the issues in this case and those in the immunity case,” he said, “but a cynic might say ruling for Trump here frees up the court to rule against him there.”