I Don’t Trust the Supreme Court With the 2024 Election

It’s impossible to say whether Donald Trump or Kamala Harris will win the presidential election next month. Far more easy to predict is that there will be litigation after Election Day over the results. By one count, there have already been more than 130 legal challenges to election laws across two-thirds of the states. Trump and his allies are aggressively sowing doubt about the election results so that they can create fraudulent slates of electors to deadlock the Electoral College if he loses.

But there is one powerful actor in the presidential election that still keeps me up at night: the Supreme Court. I was fairly confident ahead of the 2020 election that the justices would not grossly intervene for Trump’s benefit. Indeed, they ultimately rejected MAGA litigation intended to throw out the results, wholesale. But the court’s rulings in Trump’s favor last term—first on disqualification under the Fourteenth Amendment and then on presidential immunity—mean I can’t make the same assumption this time.

For most of the Trump years, the Supreme Court did not show the former president any clear favoritism—by which I mean that its members did not rule in his favor in ways that did not reflect their general approach to the law. When the justices tossed a series of congressional subpoenas for Trump’s financial records in 2020, for example, it fit within the court’s general trend of insulating the executive branch from congressional scrutiny. That same day, they also allowed New York prosecutors to obtain those records with a grand jury subpoena, rejecting his sweeping arguments for immunity.

This trend continued through the end of Trump’s presidency as the justices consistently rejected his last-ditch legal attempts to overturn or change the election results in 2020. The Supreme Court even rejected a bizarre but well-organized lawsuit by Texas and other Republican-led states that sought to negate the electoral votes in multiple states that President Joe Biden had won, without hearing arguments on it. Eleventh-hour pleas to specific members of the court like Justice Samuel Alito also went nowhere.

Something has changed since then. In the disqualification case, the court’s conservative majority went out of its way to butcher Section 3 of the Fourteenth Amendment in Trump’s favor. The unsigned majority decision declined to hold that Trump hadn’t taken part in an insurrection or that the clause didn’t apply to him, which would have been narrower (albeit flawed) grounds for reversal. Instead they took the sweeping position that states couldn’t enforce the disqualification clause without separate congressional authorization. The conservative majority, parting ways with the liberal justices, then went one step further to hold that federal courts could not disqualify Trump either.

As I’ve noted before, the Anderson ruling was a judicial train wreck. It defied the normal practice for how presidential qualifications are enforced. States routinely reject candidates for not meeting the age or natural-born citizenship requirements. It also mangled the structure of the Fourteenth Amendment itself. Not only is the clause self-executing in both design and practice, but requiring congressional action also complicates how the rest of the amendment works. Taken altogether, the ruling smacked of short-term expediency and political convenience instead of thoughtful judgment.

Trump v. United States is much worse. Here we must begin by stating the obvious: There is no such thing as “presidential immunity” in the American constitutional order. It cannot be found in the Constitution’s text, history, or tradition. The Supreme Court had never before suggested that presidents enjoy any form of criminal immunity before now. Even American presidents didn’t think it existed until Trump proposed it. If they did, Gerald Ford wouldn’t have bothered to pardon Richard Nixon after he resigned over Watergate.

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