Friday evening, January 5, the United States Supreme Court granted Donald Trump's Colorado appeal. Justices will review the December 19 Colorado Supreme Court decision to remove Trump from the state's primary election ballot. The Colorado court ruled 4-3 that the former president isn't eligible to occupy the Oval Office again and removed him from the primary ballot, citing the insurrection clause of the US Constitution's 14th Amendment. In a rare move, the Supreme Court set an oral argument simultaneously with the announcement that they would hear the case on February 8 – a rapid pace for our nation's highest court.
The Trump Appeal
The Colorado Republican State Central Committee first filed an appeal from Trump's disqualification as an insurrectionist. That case was filed in the United States Supreme Court on December 28. Then, on January 3, Mr. Trump filed separately. Trump's appeal has been granted a hearing, with no indication from the Supreme Court that they will act on the party committee petition.
Per Court rules, all petitions for "writ of certiorari" or requests to be heard must first state precisely the question the court is being called on to resolve. Mr. Trump presented this question
"Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?"
His brief states that, in recent months, "more than 60 lawsuits or administrative challenges have been filed seeking to keep President Trump from appearing on the presidential primary or general-election ballot." Depending on which arguments justices adopt, this case potentially affects all or none of those others. Notice that the question presented was not, for instance, "May a state declare a candidate an insurrectionist absent a conviction in a criminal court or Congress?" An answer to that question would apply to Colorado and every other jurisdiction where authorities are moving on similar grounds to exclude the former president.
Mr. Trump's brief laid out several independent arguments challenging the Colorado court order. Some attacks center on the novel interpretation of the 14th Amendment now favored by so many blue-state partisans. If a majority of justices rule that Trump wins on this argument, the other cases will likely fall by the wayside. Other arguments, however, hinge on a critical view of how Colorado handled this case specifically and with regard to Mr. Trump:
"The district court denied President Trump basic discovery tools, including the opportunity to depose experts or potential witnesses, compel production of documents, or receive timely disclosures.
"And the compressed timeframe gave President Trump only 10 days to identify and disclose his rebuttal witnesses and 18 days to identify and disclose his rebuttal experts."
Chief Justice John Roberts will no doubt try for a unanimous ruling if he can manage one, as well he should. A frustrating consequence of that effort, however, could lead the Supreme Court to rule on Colorado's court procedures and practices rather than the constitutional legal questions presented. In 2017, they did that in another case from Colorado – Masterpiece Cakeshop. Instead of ruling on whether the First Amendment protected a baker against crybully gay marriage proponents, it ruled that the state authorities' decision-making process was tainted, effectively sidestepping the constitutional issue.
When Will We Know?
Ordinarily, a case argued before the Supreme Court in February would not be ruled on until late Spring. Given how rapidly the court set a date for oral arguments here, though, with a quick briefing schedule, they may well rule much sooner than that. Colorado's primary is set for March 5, 2024.
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