How the Supreme Court May Rule on Trump’s Presidential Run

The Supreme Court, battered by ethics scandals, a dip in public confidence and questions about its legitimacy, may soon have to confront a case as consequential and bruising as Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush.

Until 10 days ago, the justices had settled into a relatively routine term. Then the Colorado Supreme Court declared that former President Donald J. Trump was ineligible to hold office because he had engaged in an insurrection. On Thursday, relying on that court’s reasoning, an election official in Maine followed suit.

An appeal of the Colorado ruling has already reached the justices, and they will probably feel compelled to weigh in. But they will act in the shadow of two competing political realities.

They will be reluctant to wrest from voters the power to assess Mr. Trump’s conduct, particularly given the certain backlash that would bring. Yet they will also be wary of giving Mr. Trump the electoral boost of an unqualified victory in the nation’s highest court.

Chief Justice John G. Roberts Jr. will doubtless seek consensus or, at least, try to avoid a partisan split of the six Republican appointees against the three Democratic ones.

He may want to explore the many paths the court could take to keep Mr. Trump on state ballots without addressing whether he had engaged in insurrection or even assuming that he had.

Among them: The justices could rule that congressional action is needed before courts can intervene, that the constitutional provision at issue does not apply to the presidency or that Mr. Trump’s statements were protected by the First Amendment.

“I expect the court to take advantage of one of the many available routes to avoid holding that Trump is an insurrectionist who therefore can’t be president again,” said Nicholas Stephanopoulos, a law professor at Harvard.

Such an outcome would certainly be a stinging loss for Mr. Trump’s opponents, who say the case against him is airtight. But the Supreme Court would be attracted to what it would present as a modest ruling that allows Mr. Trump to remain on the ballot.

“This is a fraught political issue,” said Derek Muller, a law professor at the University of Notre Dame. “I think there will be an effort for the court to coalesce around a consensus position for a narrow, unanimous opinion. That probably means coalescing around a position where Trump stays on the ballot.”

If there is a consensus among legal experts, it is that the Supreme Court must act.

“For the sake of the country, we need resolution of this issue as soon as possible,” said Richard L. Hasen, a law professor at the University of California, Los Angeles. “Republican primary voters deserve to know if the candidate they are considering supporting is eligible to run. Otherwise they waste their votes on an ineligible candidate and raise the risk of the party nominating an ineligible candidate in the general election.”

Mr. Trump was disqualified in Colorado and Maine based on Section 3 of the 14th Amendment, which bars officials who have taken an oath to support the Constitution from holding office if they then engage in an insurrection.

Professor Stephanopoulos said those determinations were legally sound. But he added that he was “highly skeptical” that the Supreme Court, which has a six-justice conservative supermajority, would agree.

“I think Roberts very much doesn’t want the court disrupting a presidential election, especially based on a novel legal theory that doesn’t have years of support from conservative judges and academics,” Professor Stephanopoulos said. “I also doubt that the court’s conservative justices want to start a civil war within the Republican Party by disqualifying the candidate whom most Republican voters support.”

Tara Leigh Grove, a law professor at the University of Texas, said the court has no options that will enhance its prestige.

“Although many members of the public would of course embrace a decision affirming the Colorado Supreme Court,” she said, “others would recoil at the decision. I don’t think there is any way for the Supreme Court to issue a decision on this issue that will clearly enhance its legitimacy with the public as a whole.”

She proposed a general rule of thumb: “Whenever the Supreme Court considers a truly extraordinary constitutional case, it must confront at least two issues: first, what is the better answer to the legal question; and second, how confident are the justices in that answer.”

“When it comes to cases that will have a massive impact on society,” she said, “one might assume that the confidence level has to be particularly high.”

In her ruling on Thursday, Secretary of State Shenna Bellows of Maine wrote that the facts about Mr. Trump’s conduct were “not in serious dispute.”

“The record establishes that Mr. Trump, over the course of several months and culminating on Jan. 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power,” she wrote, adding: “The weight of the evidence makes clear that Mr. Trump was aware of the tinder laid by his multimonth effort to delegitimize a democratic election, and then chose to light a match.”

Like the Colorado Supreme Court, Ms. Bellows put her ruling on hold while appeals move forward. That means the U.S. Supreme Court has some breathing room.

The Colorado case is already before the justices in the form of a petition seeking review filed by the state’s Republican Party, which urged the court to resolve the case by March 5, when many states, including Colorado and Maine, hold primaries. Otherwise, they said, voters “will face profound uncertainty and the electoral process will be irrevocably damaged.”

The six voters who prevailed in the Colorado case asked the justices to move even faster, culminating in a decision on the merits by Feb. 11.

Professor Hasen said the ruling from Maine added to the need for prompt resolution.

“The fact that a second state, at least for now, has ruled Trump ineligible for the ballot puts major pressure on the Supreme Court to intervene in the case and to say something about how to apply Section 3 to Trump,” he said. “The plaintiffs bringing these lawsuits are relentless, and they will keep trying to get Trump removed.”

Agreeing to hear the case is one thing. Resolving it is another. As the Colorado Supreme Court recognized, there are at least eight discrete issues in the case, and the voters challenging Mr. Trump’s eligibility must prevail on all of them.

“For Trump to win, he only needs to win on one issue,” Professor Muller said. “There are many options at the court’s disposal.”

On the other hand, leading conservative law professors who have examined the original meaning of Section 3, which was adopted after the Civil War, have recently concluded that it plainly applies to Mr. Trump and bars him from another term. Such originalist arguments generally resonate with the court’s most conservative members.

But other considerations may prevail.

“As much as the court may want to evade politics in its decisions, it’s unavoidable,” Professor Muller said. “The best it can do right now is try to achieve consensus to avoid the appearance of partisanship.”