Might the Supreme Court try to sidestep key Trump 14th Amendment questions? ANALYSIS
With the U.S. Supreme Court hearing arguments Thursday over a Colorado Supreme Court ruling disqualifying Donald Trump from that state's 2024 Republican primary ballot, legal experts say there are several ways the justices could reverse the decision without weighing in directly on Trump's conduct or allegations that he engaged in insurrection after the 2020 election.
Many veteran court watchers who spoke with ABC News have presumed the justices will want to sidestep, if at all possible, the politically explosive and untested application of Section 3 of the 14th Amendment to a presidential candidate, perhaps hoping to avoid a ruling similar to the court's controversial Bush v. Gore decision that decided the 2000 election.
"There's a fairly good chance that they'll find a way to duck that," said Harvard Law professor emeritus and constitutional scholar Laurence Tribe. "They'll say it's a political question, not for us, for the voters. Or, they might try to say it's ultimately a constitutional question for the voters to decide."
While the court could wade into the substance – either endorsing the Colorado Supreme Court finding that Trump "engaged in insurrection" on Jan. 6, 2021, or overturning it with a contrary analysis of the facts – a swift narrow or technical decision may be the most advantageous approach for a court looking to avoid being cast as interfering with the election.
"As the hours go by, it's more likely they are not going to drag this out," said ABC News legal analyst Sarah Isgur. "Having oral arguments elevates the whole thing and makes it more climactic."
Former Trump Solicitor General Noel Francisco, in a court filing has urged the justices to take one possible off-ramp that he says exists in the plain text of the 14th Amendment itself.
"Even if the Colorado Supreme Court were correct that President Trump cannot take office on Inauguration Day, that court had no basis to hold that he cannot run for office on Election Day," Francisco wrote in a friend-of-the-court brief on behalf of the National Republican Senatorial Committee.
Section 3 of the 14th Amendment prohibits a former oath-taking "officer of the U.S." who "engaged in insurrection" from "holding any office, civil or military, under the U.S." But it says nothing about running for office or appearing on a ballot.
Francisco argues that the provision also explicitly gives Congress a chance to vote to override a candidate's alleged disqualification – a power that would only be meaningful if he or she were allowed to run and actually won office.
The Colorado Supreme Court "effectively usurped Congress's sole authority to decide when, if at all, to remove any section 3 disqualification," Francisco argues. "This error is a clear, indisputable, and sufficient basis to reverse the judgment below."
They could alternatively decide that Section 3 simply does not apply to the president.
"They could say the Constitution does not consider the president 'an officer of the United States,'" said Isgur. "Rather, the President is the executive branch and that's just a different position."
Some constitutional scholars say the court could address Trump's appeal on due process grounds -- vacating the Colorado court's decision and instructing it to revisit the matter with a different approach.
"It might hold narrowly that the Colorado Supreme Court placed too much weight on unreliable evidence," wrote Adam Unikowsky, a veteran Supreme Court litigator at Jenner & Block LLP, in his weekly newsletter. Or the Court could simply say the available evidence of Trump's conduct didn't meet an exacting-enough legal standard and to try again, he said.
Such an outcome "may leave the door open, at least a crack, to find Trump ineligible in a future preceding," Unikowski wrote. "It's not likely, but everything about this case is unlikely."
The Colorado Republican Party, which appealed the state court's decision, asked the justices to expedite consideration of the case and deliver a decision before Super Tuesday on March 5. The 6 Colorado voters -- four Republican and two unaffiliated -- who brought the lawsuit challenging Trump's eligibility asked the court to act even faster -- by Feb. 11, before primary absentee ballots are mailed out.
"No justice is going to be able to say to herself or himself there's an easy way to do this," said Tribe.
