President Trump’s 14th Amendment challenge at the Supreme Court poses a big test for John Roberts

CNN
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For Donald Trump, the fate of his presidential campaign will be in the balance when the Supreme Court meets Thursday to hear a politically fractious challenge to Colorado’s voting eligibility.

For Chief Justice John Roberts, that will be, at least in part, his legacy going forward.

Since joining the bench in 2005, Roberts has developed a reputation for trying to keep the court away from the partisanship that plagues other parts of Washington. But Roberts’ centrist, slow-paced approach could face its biggest test as the former president, a leading contender for the Republican nomination, continues to sit on the Supreme Court he helped shape. There is.

The chief justice, who turned 69 last month, must navigate an unwieldy group of colleagues, some of whom have complained publicly about distrust within the office in recent years. The fight will run up against new issues of impunity for former presidents and one of the most charged election disputes in history.

The court will hear arguments Thursday on whether President Trump violated the 14th Amendment’s “insurrection clause” when he launched a rally on January 6, 2021, before the storming of the U.S. Capitol. If the Supreme Court rules that Trump committed an insurrection and violated a post-Civil War ban, it would effectively end Trump’s campaign.

And President Trump also appears certain to take his case to the Supreme Court soon on another issue: his claim that he is entitled to absolute immunity in special counsel Jack Smith’s criminal election interference case. A federal appeals court rejected that argument Tuesday, saying President Trump should contact the Supreme Court if he wants to further delay the trial.

That request goes to Roberts.

The differences between Mr. Roberts and Mr. Trump could not be greater. Roberts is a quiet conservative and institutionalist who is widely seen as trying to protect the American people’s trust in the Supreme Court. Trump has gained power by going against the system, and has led judges he appointed, including Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, to side with him in past cases. He has been publicly accused of doing so.

For any presiding judge, the best outcome is usually one that yields a unanimous or near-unanimous outcome. When it comes to election litigation, many experts believe the easiest path forward is a narrow decision that allows Trump to remain on the ballot and for the Supreme Court to avoid sweeping conclusions about Trump’s actions.

“It would be much better if it was unanimous and didn’t look like a partisan decision,” says Tom, a professor at the University of Chicago Law School and author of a 2018 book about the threat of democratic collapse.・Mr. Ginsburg says. “The challenge for Roberts is to choose a jurisprudential path that will get him nine votes.”

This may include seeking a legal “exit” to resolve the case in a limited manner. For example, a court could rule that the anti-insurrection statute does not apply to the president, or that it requires an act of Congress to be enforced.

Trump’s appeal comes as confidence in the Supreme Court has fallen to record lows, with many Americans, especially on the left, viewing it as a separate political branch, according to polls. It is being done. The court’s approval plummeted after it was revealed that the justices upheld strict abortion laws in Texas in 2021, overturned Roe v. Wade the following year, and were later embroiled in a series of ethics scandals.

Mr. Roberts’ soft powers of persuasion often create a middle ground that brings together some combination of the court’s six conservatives and three liberals. In June, a 6-3 majority rejected the Trump-backed theory that state legislatures have virtually unlimited power to set voting rules, but the scope of the court’s power to intervene also remains vague. became.

And sometimes those efforts end in failure. When the Supreme Court overturned Roe v. Wade in 2022, the chief justice advocated a position that would leave the landmark 1973 precedent largely intact while allowing for more restrictive abortion laws. None of his colleagues joined him.

Some of the most important decisions in the Supreme Court’s history are closely tied to the chief justice who decided them. Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law, said that when courtroom observers think of school desegregation cases from the 1950s, they often think of Chief Justice Earl Warren. do. When people think of the 1974 Watergate tape scandal, they often associate its outcome with Chief Justice Warren Berger.

These important cases were decided unanimously.

“Whatever the court does in this case will be difficult to distinguish from the identity of the current presiding judge,” Vladek said. “And the question becomes: to what extent can Chief Justice Roberts lead the court to outcomes that enhance, rather than further undermine, public trust?”

Appointed by President George W. Bush, Roberts joined the Supreme Court in 2000, nearly five years after the decision in another highly controversial election case, Bush v. Gore. In this case, a recount in Florida ended with a 5-4 majority, effectively ruling the case. President Bush defeated then-Vice President Al Gore.

Roberts, then a private attorney, joined Bush’s defense team in Florida that same year. But he also witnessed the impact of a decision that divided the country and drew considerable scrutiny to the court. The late Justice Sandra Day O’Connor, who died in December, later expressed regret that she and her colleagues had taken up the controversy.

Mr. O’Connor told members of the Chicago Tribune Editorial Board in 2013 that he did not know whether the courts should intervene. She told the newspaper that the case had caused a “public uproar” and “gave the court a less-than-perfect reputation.”

But some of Trump’s critics believe Roberts’ legacy could be undermined by pursuing an easy path out of the political thicket.

“How will you be judged by history? How will you be judged by people tomorrow? said Stuart Gerson, a lawyer who held a key position.

“My opinion is that we need to uphold the rule of law,” he said. “If there are consequences, we need to face them.”