Below is my column in The Messenger on the challenge facing the Supreme Court in the coming week over the electoral disqualification of former president Donald Trump in Colorado and Maine. The appeal in Maine has been filed and can now work its way up to the Court. Colorado is expected to file with the Court this week. If the Court does not act before Jan. 4th, Colorado could seek to moot any appeal and avoid review. It would then depend on the Maine litigation to bring the matter back to the Court.
Here is the column:
It is “a sad day for America and the Constitution when a court decides the outcome of an election.” Those words, condemning a 4-3 decision by state supreme court justices regarding a presidential election, undoubtedly spoke for millions of Americans.
However, it wasn’t a reference to the Colorado Supreme Court’s recent 4-3 decision to disqualify Donald Trump from running in the 2024 election. Instead, it was a statement by James Baker, then a spokesman for Republican presidential candidate George W. Bush, criticizing the Florida Supreme Court’s decision during the 2000 election.
Of course, the condemnations in 2000 would shift to the U.S. Supreme Court, when it stopped the recount ordered by the four Florida justices and effectively called the election for Bush. Then, it was the left condemning the U.S. justices as being, in the words of law professor Cass Sunstein, “illegitimate, undemocratic, and unprincipled.”
Even the justices appeared to lose some of their customary collegiality and civility in the moment. Then-Justice Ruth Bader Ginsburg famously omitted the customary word “respectfully” before the phrase “I dissent” at the end of her opinion.
Now, the Supreme Court is being pulled into another election vortex by the Colorado decision and, potentially, by some of the cases in at least 15 other states. (Appeals of ballot decisions are pending in Arizona; ballot challenges are in process in Alaska, Maine, New York, New Jersey, Nevada, New Mexico, Oregon, South Carolina, Texas, Vermont, Virginia, West Virginia and Wyoming. A Wisconsin challenge has been denied twice.)
Colorado and now Maine remain outliers after the Michigan Supreme Court rejected another disqualification effort in that state. Last Wednesday, the Colorado GOP appealed to the U.S. Supreme Court, which is expected to accept the case given the split among the states and the importance of the issue. Politicians on both sides of the aisle have criticized the decision by Maine’s secretary of state and urged that the courts overturn it. But the two states’ decisions — and the risk of others joining them — underscores the imperative need for the nation’s high court to decide the issue once and for all.
The Court is not an institution eager for this role. The ruling in Bush v. Gore produced one of the greatest institutional crises in the Court’s history, and the impact reverberated for decades. As someone covering the 2000 opinion as a CBS News legal analyst at the time, I was taken aback by how the motivations and even the integrity of the justices was challenged in reaching their decision. In the New Republic, for example, the majority was denounced and dismissed by Jeff Rosen as simply “four vain men and one vain woman.”
I am not the only one with vivid memories of that day. One justice from the 2000 majority still sits on the Court: Clarence Thomas. While many have called for him to recuse himself, he will likely vote with the rest of the Court if he follows past practices.
Three other justices have their own connections to Bush v. Gore.
Chief Justice John Roberts was then a Republican lawyer who helped present Bush’s case to the Florida Supreme Court and advised the Bush campaign on its U.S. Supreme Court challenge. President Bush later put Roberts on the U.S. Court of Appeals for the District of Columbia.
Notably, during his confirmation hearing, Roberts said he believed that “the particular parameters in [Bush v. Gore] won’t” return to the court. He then said it would be “inappropriate” for him to comment further on such “very recent precedent.”
Justice Brett Kavanaugh also was an attorney on the Bush team in 2000 and played a role in the recounts and challenges out of Volusia County, Florida.
At the time, another rising star in Republican legal circles was getting her start as a young law firm associate. Amy Coney Barrett worked on the briefing for Bush v. Gore and went to Florida briefly during the recount litigation.
Roberts is correct that the “particular parameters” of Bush v. Gore are unlikely to return to the Court with its “hanging chads” and “butterfly ballots.” However, there are some echoes of that earlier fight in the coming battle over whether Trump can be barred from appearing in state presidential-election ballots.
Kavanaugh said in a CNN interview that the Court was primarily concerned about “the arbitrary, standard-less nature of the recount process in Florida.” There is likely to be a similar unease over the use of the Constitution’s 14th Amendment and classification of the Jan. 6, 2021, riot as an “insurrection” by four Colorado state justices.
The Court’s member who would most want this cup to pass from his lips is, undoubtedly, Chief Justice Roberts. As a fierce institutionalist, Roberts is known to resist putting the Court in the middle of powerful political currents. Even on issues like abortion, Roberts stood alone in trying to eke out a compromise of preserving Roe v. Wade while upholding more stringent state abortion laws.
Although Roberts is not beyond joining sweeping decisions like the recent rejection of race criteria in college admissions, he tends to be an incrementalist who does not like the Court getting ahead of its skis in rendering final legal decisions on matters of ongoing political debates.
In that sense, everything about the Colorado case is likely to repel Roberts, but he may have little room to maneuver with the politically shortened calendar and the major impact of the state decision. While there is a potential mootness “exit ramp” from review of the Colorado decision, the Maine decision will eventually force the issue again for the Court after lower court reviews.
The greatest test for Roberts may not be simply to marshal a majority to overturn this ruling. Many of us view the 14th Amendment theory to be not just fundamentally flawed but incredibly dangerous. There are a host of elements in the Colorado decision that could easily result in a reversal — from the potential application of the provision to the office of the president, to the conclusory treatment of the Jan. 6 riot as a rebellion, to the casual dismissal of Trump’s free-speech rights.
Yet, Roberts has previously noted that one of the toughest jobs as chief justice comes with the effort to secure unanimous decisions in key cases. This is one of those cases.
The Colorado Supreme Court was wrong on the law, but the case raises the same institutional challenges as Bush v. Gore. Back in 2000, the Court fractured and left a bitter legacy for both the justices and the public. Faced with another controversial 4-3 decision by a state supreme court during a presidential election, Roberts will need to seek more than just a final decision. He will likely push hard for a unanimous decision, to have the Court speak in one voice to avoid the bitter fracturing of 2000.
It could prove to be the finest moment for the Roberts court if the chief justice succeeds and all of the justices can show Americans that they can set aside their own divisions to affirm core principles of the democratic process. They can speak as one, not just for the Court but for the country.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School. He teaches a course on the Supreme Court and the Constitution.