Supreme Court decides: Can Trump be on the ballot?

The USA is a polarized country. Trump has broken norms. The sad low point of his presidency was the storming of the Capitol. Will this disqualify Trump from being president? The background explained.

The US Constitution regulates who can become president. The person must be a natural-born citizen, at least 35 years old, and have lived in the United States for at least 14 years. So far, so clear. But then there is the so-called ban on insurrection in the 14th Amendment. It basically means that no one who has previously taken part in an uprising against the state as an official may hold a higher office in the state.

Curtain up: Donald Trump. The 77-year-old wants to go back to the White House after the presidential election in November. But the Republican’s opponents argue that with his behavior surrounding the storming of the Capitol, he forfeited his right to become president again. With appropriate efforts they were successful – for example in the state of Colorado. Now it’s the country’s highest court’s turn.

This Thursday, the nine judges in Washington will hear the arguments from both sides – but a decision will not be made until later. In December, the highest court in Colorado ruled in an explosive ruling that former President Trump had disqualified himself from the Republican primary for the presidential nomination in the state. Trump appealed. The judgment is suspended until the question is finally clarified. It is now up to the Supreme Court to decide on the further course of the presidential elections in the USA. The question of Trump’s exclusion from the presidency is not only legally tricky – it is politically explosive, could further divide US society in an election year and push the political system to its limits.

Trump has shifted the majority on the Supreme Court to the right

The country’s highest court likes to appear impartial and unbiased. A good 23 years ago, however, it made a historic decision about the outcome of a presidential election. At that time the question was whether the votes in the crucial state of Florida should be recounted. The Supreme Court stopped the recount, making Republican George W. Bush president, while Democrat Al Gore lost. The court’s reputation was damaged at the time and there was a lot of criticism. The Supreme Court’s ruling in the Trump case is likely to have a similar – perhaps even greater – dimension.

During his term in office, Trump had the opportunity to fill three Supreme Court judgeships. He chose ultra-conservative and deeply religious candidates and shifted the court’s majority far to the right, possibly for decades. Only three of the nine judges are assigned to the liberal camp. In this configuration, the court has often ruled in favor of religious plaintiffs, weakened the protection of minorities and overturned the right to abortion, which had been in effect for around 50 years. As a result, surveys show that the court has lost support among the population. However, it didn’t always decide what Trump wanted – for example when it came to the release of his tax documents.

Legal tightrope act

In the case of Trump’s suitability as president, there are roughly three questions to be answered. The first is whether the Insurrection Clause in the Constitution applies to presidents. Although the passage mentions some examples of such higher offices, the office of president is not explicitly mentioned. Secondly, it must be clarified whether the storming of the Capitol on January 6, 2021 should be considered an insurrection. Trump’s supporters stormed the parliament building in Washington. Congress met there to formally confirm Democrat Joe Biden’s victory in the presidential election. Trump had previously incited his supporters during a speech. Thirdly, if this event were to be considered an insurrection, it would have to be clarified whether Trump took part in it.

However, experts assume that the court will not answer any of these questions. Because the case is too politically charged for that. “I think there will be a technical verdict,” says law professor Aaron Tang from Stanford University in California in an interview with the German Press Agency. This means that the Supreme Court would avoid the central questions in order not to make itself politically vulnerable. “You can think of this as an emergency exit, a way for the Supreme Court to rule in favor of Trump that is not politically explosive.” Tang expects the court to side with Trump.

Supreme Court could shift responsibility to Congress

Tang and other lawyers suspect that the Supreme Court could see Congress as having jurisdiction over the question of presidential eligibility. A possible ruling could say that the US Congress would first have to pass a corresponding law before the insurrection clause could be applied. Trump’s opponents argue that a law is not needed to apply the constitution. And some experts warn against shifting responsibility to Congress in such polarized times. Even lawyers who have taken a stand on Trump’s behalf at the Supreme Court don’t think much of such a solution.

“I would like the court to find a clean solution,” said lawyer Josh Blackman at an event organized by the conservative think tank Heritage Foundation. “I think a half-hearted statement (…) that leaves it to Congress is a risk that involves playing with dynamite.” There are many other ways the court can ultimately rule. It could also declare Trump fit for president while still taking a stance on the nature of the storming of the Capitol. The justices might as well rule that the Insurrection Clause does not apply to presidents. Blackman, for example, also argues this.

Trump’s worst case scenario

And of course there is also the possibility that the Supreme Court will decide that Trump is unfit to be president. He could then continue to run as a candidate, but under certain legal circumstances his name could perhaps also appear on the ballot paper. But the Republican is unlikely to become President of the USA again. Experts believe that it is absolutely unlikely that the Supreme Court will make such a ruling. Some also fear political violence – the storm on the Capitol showed how far Trump and his supporters are willing to go. For lawyer Tang, such a verdict would be a “world-changing decision.”