Former president Donald Trump’s attorneys formally requested on Wednesday that the US Supreme Court overrule the Colorado Supreme Court’s decision that disqualified him from appearing on the state’s 2024 ballot. Last month, the Supreme Court rejected Special Counsel Jack Smith’s request that the court make a “swift” and definitive ruling on whether Mr Trump can claim immunity for crimes he committed as president.
Both cases show the precarious situation the Supreme Court is navigating, after the court’s credibility took a massive hit with the Dobbs v Jackson decision that overturned Roe v Wade.
At the same time, it seems incredibly fitting given that Mr Trump likely would not have won the presidency in 2016 if not for the Supreme Court. This is not to say the court made a legal decision the way it did in Bush v Gore 16 years before Mr Trump’s ascent. Rather, the prospect of Mr Trump changing the balance of the court and nominating solidly conservative justices served as a sufficient pot sweetener for many Republicans – particularly evangelicals and social conservatives – who otherwise chafed at supporting a brash former Democrat from New York.
Indeed, when Justice Antonin Scalia died in the final year of Barack Obama’s presidency, then-Senate Majority Leader Mitch McConnell refused to hold hearings on Mr Obama’s nominee, now-Attorney General Merrick Garland, saying that the Senate should wait until a new president was elected.
The move incentivised Republicans to keep their eye on the prize even as Mr Trump demonised immigrants and footage leaked of him bragging about sexually assaulting women.
Now, the Supreme Court is set to decide Mr Trump’s fate once again this election in terms of how the legal cases against him may proceed, and whether he can remain on the ballot in some states.
On top of that, the Supreme Court will also hear a challenge to the long-standing approval of mifepristone, a widely used abortion drug. The court’s strident rightward lurch could easily imperil the approval of a common drug and voters would see it as a court filled with Trump-nominated justices further restricting abortion access.
If Mr Trump stays on the ballot, or even another Republican somehow miraculously beats him in the GOP primary, they will have to reckon with however the court acts. The 2022 midterm elections largely went sour for Republicans because of the Dobbs decision.
Further curbing abortion access would likely give President Joe Biden another tool with which to bludgeon Mr Trump and make the election about protecting abortion rights as well as preserving democracy.
The court likely knows how its image has nosedived in the public eye. Chief Justice John Roberts has long worried about the perception and reputation of the court. The justices likely know that the question of kicking a former president off the ballot is unprecedented, but so too is a former president inciting a riot at the Capitol, which is just across the street from the building where the justices meet.
In addition, the court likely knows the fact that the American public would immediately take into account that Mr Trump nominated three of the justices. And on the flipside, Mr Trump, a man who expects nothing but absolute fealty, will likely demand those justices rule in his favour and if not, whip his supporters against them.
The justices would likely chafe at this framing of them as Trump lackeys. Indeed, Mr McConnell, the Federalist Society and many other right-wing actors had as much to do with reshaping the court as Mr Trump. But Mr Trump served as the vessel for them to accomplish their decadeslong project. And now it will need to grapple with that label as it determines Mr Trump’s political and legal future.
