Decryption | 2024, perilous year for the Supreme Court

(New York) By the admission of the late Justice Antonin Scalia, his conservative pillar at the time, the Supreme Court of the United States did not honor itself the last time it intervened in a presidential election.

“As they say in Brooklyn: a pile of crap,” the New York native said privately of the reasoning behind the ruling by the highest U.S. court that halted the recount of ballots in Florida and gave George W. Bush the keys to the White House after the 2000 presidential election¹.

Responsible for this reasoning adopted by five judges appointed by Republican presidents, including Scalia, and rejected by four judges appointed by Democratic presidents, Justice Sandra Day O’Connor herself admitted in 2013 her regrets regarding this intervention.

“Perhaps the Court should have said: ‘We are not going to take up this case, goodbye’,” he told the Chicago Tribune the one who died on the 1st^er last December, 17 years after his retirement.

However, in 2024, it is not a single question relating to a presidential election that the Supreme Court could take up, but at least three:

• Does Donald Trump have “absolute immunity” for alleged crimes he committed while in the White House?
• Can he be disqualified from running for president under an amendment dating back to Reconstruction?
• Can he even be charged with obstructing an official proceeding on January 6, 2021?

Questions that are all the more perilous because they arise at a time when the popularity rating of the Supreme Court is at its lowest, due in particular to divisive decisions on abortion, firearms and religion, among others, and scandals involving certain judges with questionable ethics, including Clarence Thomas. Let’s take a closer look at these questions.

Immunity

“The fact that the accused was commander in chief for four years did not confer upon him the divine right of kings to escape the criminal responsibility which governs his fellow citizens. »

On December 3, Judge Tanya Chutkan rejected in these terms Donald Trump’s request to cancel his federal trial for post-election conspiracy. The former president claims he has “absolute immunity” for his actions in the White House.

The dispute ends up today before three judges of the United States Court of Appeals for the District of Columbia Circuit, who will hear arguments from both sides on January 9. Their decision will follow shortly after.

If it takes up the case, the Supreme Court could help Donald Trump’s cause by validating his request or by ruling only after the presidential election. For the moment, the start of the trial is set for March 4, but the appeal procedure could postpone this date by several weeks, or even several months.

The Justice Department’s Office of Legal Counsel has already ruled that a sitting president cannot be subject to federal criminal prosecution. But the Department does not believe the same immunity extends to former presidents.

The Supreme Court will have the opportunity to rule on the matter.

Eligibility

She will also have the opportunity to decide an even thornier question, namely the eligibility of Donald Trump in the 2024 presidential election. The Colorado Supreme Court and the Maine Secretary of State concluded that the former president was disqualified under Article 3 of 14^e amendment to the American Constitution. This text prohibits any person who has taken an oath to support the Constitution from exercising their function if they subsequently engage in an insurrection.

Will the Supreme Court, six of whose nine members were appointed by Republican presidents, dare to disqualify the Grand Old Party voters’ favorite candidate? According to several experts, she will avoid commenting on the question of whether Donald Trump participated in an insurrection. It could thus simply rule that Article 3 does not apply to the president or that the former president cannot be disqualified without an act of Congress or a criminal conviction for insurrection.

That said, some experts believe that the most conservative justices on the Supreme Court, those who take an “originalist” or “textualist” reading of the Constitution, could only come to one conclusion without betraying their philosophy: Trump is unelectable. .

They argue in particular that the authors of the amendment did indeed specify in their discussions that a conviction for insurrection was not necessary for the disqualification of a person and that the president was one of the “officers” targeted by the Article 3. They further specify that the only definition of the word “insurrection” that should guide judges today is that which prevailed in 1866, the year the amendment was adopted.

Prediction: The Supreme Court will deny Trump the “absolute immunity” he claims in his lawsuit in Washington, but will recognize his eligibility in the 2024 presidential election.

Obstruction

Unlike the two previous cases, the file Fischer v. UNITED STATES is already on the Supreme Court’s calendar in 2024. As its name indicates, it does not directly concern Donald Trump, but Joseph Fischer, a former police officer, who is among the more than 300 people charged or convicted of obstructing an official proceeding in connection with the January 6, 2021 assault on the Capitol.

In 2022, a federal judge appointed by Donald Trump overturned Fischer’s conviction. He concluded that the law invoked among the charges against Fischer applies to administrative offenses and not to the violent intrusion of the former president’s supporters into the Capitol.

Rejected by a federal appeals court, this decision is now before the Supreme Court. If Fischer wins his case, Donald Trump could see two of the four charges against him dropped in Washington.

The Supreme Court’s decision is expected near the end of its current session in June, four months before the presidential election.

1. Anecdote taken from First: Sandra Day O’Connorbiography signed by journalist and author Evan Thomas