Legal analysts weigh in after Supreme Court hears Donald Trump ballot case

Legal analysts are doubtful that the challenge against former President Donald Trump’s candidacy will succeed after hearing how the Supreme Court responded to the arguments in the ballot case.

Supreme Court justices heard oral arguments in the Colorado case on Thursday. The case, brought by a group of Colorado voters, asks whether or not Trump should be disqualified from a second term according to Section 3 of the 14th Amendment. The disqualification clause prohibits individuals who have taken an oath of office and who have engaged in insurrection against the U.S. from holding state or federal office. The Supreme Court case argues Trump’s actions leading up to and on January 6, 2021, are classified as such.

The matter of Trump’s candidacy has been challenged by a number of lawsuits but the one that appeared before the high court this week had been viewed as the most viable legal threat to his 2024 aspirations. Trump is currently the frontrunner in the Republican primaries.

But critics of the former president may be disappointed to learn that it is likely Trump’s name will remain on the presidential ballot. Legal experts told Newsweek that the line of questioning—from both conservatives and liberals on the bench—signals the justices are poised to reject the effort to kick Trump off the ballot.

“Trump is almost certainly going to win,” former federal prosecutor Neama Rhamani told Newsweek. “It’s just a question of how and by how much.”

Rahmani said the majority of the justices will likely find a way to rule that Congress should be the one to enforce the Constitution’s insurrection ban, not state officials, while avoiding weighing in on whether the Capitol riot should be considered insurrection or what Trump’s role was in the events on January 6.

“It seemed that many of the Justices were concerned with allowing individual states to make the determination of whether presidential candidates can appear on the ballot,” Supreme Court expert Alex Badas agreed. “During the argument, some of the Justices raised the hypothetical of a tit-for-tat in which Republican-controlled states tried to keep Democratic candidates off the ballot by deciding that they have engaged in insurrection. The end result would be workable, according to the hypotheticals outlined by the Justices.”

Badas, a professor at the University of Houston, told Newsweek that while justices are typically more divided by their ideologies in high-profile cases, it seemed most of them were on the same page during Thursday’s arguments, regardless of their conservative or liberal leanings.

“It seems like most of the Justices will agree to overturn the Colorado Supreme Court and allow Trump to appear on the ballot,” he said. “The decision may come down either 9-0 or potentially 8-1. It seemed to that Justice [Sonia] Sotomayor was the Justice most likely to rule in favor of affirming the Colorado Supreme Court decision, which would keep Trump off the ballot.”

Legal Analysts SCOTUS Trump
Former President Donald Trump speaks during a press conference held at Mar-a-Lago on February 8, 2024, in Palm Beach, Florida. The Supreme Court heard arguments int eh case challenging Trump’s candidacy earlier that day.

Joe Raedle

Steve Vladek, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, predicted in a post on X, formerly Twitter, that based on Thursday’s arguments, the court will ultimately rule that states can’t unilaterally disqualify presidential candidates for insurrection by a vote of 7-2 or 9-0, meaning at least one or all three of the liberal justices on the court would side with the conservative supermajority.

“Even the liberal justices were concerned about a single state barring a presidential candidate from appearing on the ballot, so they may join an opinion that overturns the Colorado ruling on procedural grounds,” Rahmani said. “I expect a decision putting Trump back on the ballot in a matter of weeks.”

Legal commentator Jonathan Turley also predicted that there could be 9-0 ruling, telling Fox News that “there’s clearly foundation here for unanimity” and that at least eight of the nine justices were prepared to rule in favor of Trump.

“The disqualification advocates may have expected a cold reception, but this was perfectly glacial,” Turley tweeted. “Notably, some of the toughest and most skeptical questions came from the left of the Court.”

Justice Ketanji Brown Jackson, who was appointed to the bench by Trump’s successor President Joe Biden, asked some of the hardest questions on Thursday, questioning lawyers for the Colorado voters why “president” isn’t included in the list of individuals barred from office in the insurrection clause.

“Why didn’t they put the word ‘president’ in the very enumerated list in Section 3?” Jackson asked attorney Jason Murray, who represented the plaintiffs. “The thing that really is troubling to me, is I totally understand your argument, but they were listing people that were barred and ‘president’ is not there.”

Badas said a unanimous ruling could be likely because justices try to make unified decisions in cases that they know have captured the public’s attention.

“They believe the decision may be less likely to spark outrage among the public and less likely to be presented as an overly partisan decision,” he said. “This helps the Court protect its legitimacy. When the public is outraged at the Court, people are less likely to defer to the Court and are more likely to challenge their decisions and encourage their Members of Congress to challenge the Court’s decisions.”