Decrypt | 2024 is a risky year for the Supreme Court

“As they say in Brooklyn: a pile of crap,” the New York native said specifically of the reasons behind the ruling by the highest US court to stop the Florida recount and give George W. Bush the keys to the White House. After the 2000 presidential elections¹.

Responsible for this reasoning, which was adopted by five justices appointed by Republican presidents, including Scalia, and rejected by four justices appointed by Democratic presidents, Justice Sandra Day O'Connor herself admitted in 2013 her regrets about this interference.

“Maybe the court should have said: 'We're not going to take up this case, goodbye,'” he told the court. Chicago Tribune Who died first^any Last December, 17 years after his retirement.

However, in 2024, the Supreme Court could consider not one question related to the presidential election, but at least three:

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

The questions are all the more serious because they arise at a time when the Supreme Court's popularity has reached an all-time low, due in particular to divisive decisions on abortion, firearms and religion, among other matters, and scandals involving some justices with questionable morals. , including Clarence Thomas. Let's take a closer look at these questions.

immunity

“The fact that the accused was Commander-in-Chief of the Armed Forces for four years does not give him the divine right of kings to escape the criminal responsibility that governs his fellow citizens.”

On December 3, Judge Tanya Chutkan denied in these terms Donald Trump's request to throw out his federal trial on post-election conspiracy charges. The former president claims he enjoys “absolute immunity” for his actions in the White House.

The dispute ends today before three judges on the US 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 the Supreme Court accepts this case, it could help Donald Trump's case by validating his request or issuing its ruling only after the presidential election. Currently, the trial is scheduled to begin on March 4, but appeals proceedings could push that date back 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 ministry does not believe that the same immunity extends to former presidents.

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

Eligibility

It will also have the opportunity to rule on a more thorny issue: Donald Trump's eligibility for the 2024 presidential election. The Colorado Supreme Court and the Maine Secretary of State concluded that the former president is ineligible under Section 3 of Title 14.^H Amending the US Constitution. This provision prohibits anyone who has sworn an oath to uphold the Constitution from exercising his or her office if they later participate in an insurrection.

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

However, some experts believe that the Supreme Court's more conservative justices, those who take an “original” or “textual” reading of the Constitution, can only reach one conclusion without betraying their philosophy: Trump is unelectable.

In particular, they argue that the drafters of the amendment had already specified in their discussions that a conviction for sedition was not necessary to disqualify someone and that the president was one of the “officers” targeted by Article 3. They further specify that the only definition of “rebellion” that judges should be guided by today is the prevailing one 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.

disability

Unlike the previous two cases, the file Fisher v. United State It is already on the Supreme Court's calendar in 2024. As its name suggests, it does not directly relate to Donald Trump, but to Joseph Fischer, a former police officer, who is among more than 300 people charged or convicted of obstructing an official proceeding in connection with the January 6 attack. 2021 on the Capitol.

In 2022, a federal judge appointed by Donald Trump overturned Fisher's conviction. He concluded that the law on which the charges against Fischer were based applies to administrative crimes, and not to the violent storming of the Capitol building by supporters of the former president.

This decision was rejected by the Federal Court of Appeal, and it 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 is expected to issue its decision near the end of its current session next June, that is, four months before the presidential elections.

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