The US Supreme Court is supporting Donald Trump’s re-election. First, it prevented his disqualification from the election, and now, in a new case, it is ruling on his alleged immunity. The first hearing is scheduled for April 25. But whatever the court decides, the mere fact that it is hearing this case at all has already helped Trump considerably by delaying his criminal prosecution.

The Supreme Court pursues a conservative agenda

Donald Trump has all but formally secured his party’s nomination. The US Supreme Court supported him in this by removing important legal obstacles to his candidacy and continuing to support his re-election in various ways. A second Trump term could transform the US into an “illiberal democracy” with potentially catastrophic consequences, not only for the country itself but also for the rest of the world.

This should not surprise anyone, as on the current Supreme Court six of the nine justices were appointed by Republican presidents. Three by Trump himself, and three others by his Republican predecessors (see table). These justices pursue a decidedly conservative agenda, most notably manifested in their June 2022 decision to eliminate the constitutional right to abortion by overturning the Court’s own decision in Roe v. Wade after nearly 50 years – a rare reversal of a long-standing right that has fragmented access to abortion in the United States.

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But the Supreme Court’s recent decisions have not only supported conservative policies, but also directly helped Trump in his re-election efforts. The Court first prevented Trump’s exclusion from the presidential election and is now deciding on his alleged immunity in a case that begins on April 25.

The Supreme Court did not disqualify Trump from the election

In a historic disqualification case, the US Supreme Court rejected the challenge to Donald Trump’s eligibility for another term of office on March 4, 2024. The case concerned a ruling of the Colorado Supreme Court from December 19, 2023, which excluded Trump from the Republican primary in the state, invoking Section 3 of the 14th Amendment to the Constitution. The Colorado court considered it proven that Trump was guilty of insurrection in connection with the storming of the Capitol on January 6, 2021, by his supporters and, therefore, removed him from the state’s presidential primary ballot.

Although the US Supreme Court would have had sound legal grounds to disqualify Trump from the presidential election, it decided not to do so. Instead, it provided an exit ramp so that he could remain on the ballot.

Moreover, Supreme Court Justice Clarence Thomas, whose wife attended the very rally that preceded the violent attack on the US Capitol, did not recuse himself from the case, calling into question the court’s integrity and neutrality, suggesting that the Supreme Court’s recently adopted new ethics rules are as ineffective as their critics have claimed.

In Trump v. Anderson, the justices ruled against Trump’s disqualification from the presidential election, holding that only Congress, not individual states, can enforce the 14th Amendment’s insurrection clause against federal officeholders and candidates. The decision was “per curiam” (i.e., “by the full court”) and unanimous, with both liberal and conservative justices agreeing.

In fact, however, the ruling was far less “unanimous” than it appears at first glance. Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson – the Court’s three liberal justices – as well as Justice Amy Coney Barrett argued in two concurring opinions that the decision went too far because the majority’s reasoning went beyond what was necessary to decide the case. By overreaching, “the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office,” Kagan, Sotomayor, and Jackson wrote.

Legal experts J. Michael and Laurence H. Tribe agreed, criticizing that “the difficulty of enacting legislation of the sort the majority declared essential makes it exceedingly unlikely that anyone who engages in an insurrection against the U.S. Constitution after taking an oath as an officer to support it will ever be disqualified under the Fourteenth Amendment.”

However, whatever the future legal and political issues arising from the Supreme Court’s ruling in Trump v. Anderson, its immediate political consequences are crystal clear: Donald Trump can continue to stand for election. The Supreme Court has rejected a major challenge to his re-election, one that could have upended his presidential candidacy by taking him off ballots around the nation. Yet this is by no means the only way in which the Supreme Court is supporting Trump.

The Supreme Court delays Trump’s criminal prosecution

In a new case Trump v. United States, starting April 25th, the Supreme Court is dealing with Trump’s claim that presidents should be immune from prosecution for alleged crimes they committed while in office. The significance of this case cannot be overstated since it will affect all four ongoing criminal cases Trump is facing, including the federal election subversion case that deals with his conduct on and before the January 6th attack on the United States Capitol.

For this reason, Special Counsel Jack Smith, who is leading the federal investigation into Trump’s election interference filed an “extraordinary request” at the Supreme Court on December 11, 2023, asking the justices to resolve “as promptly as possible” whether former presidents are “absolutely immune from federal prosecution for crimes committed while in office,” as Trump’s lawyers claim. But the Supreme Court opted against an immediate hearing and referred the case back to the lower courts, further delaying the start of the federal trial.

On February 6, 2024, the District of Columbia Circuit Court of Appeals unanimously ruled that Trump did not have presidential immunity. The case was then appealed to the Supreme Court which now agreed to hear it, setting arguments for April 25. The Court also maintained the stay on the criminal trial until its decision was made. By taking up the case – rather than upholding the decision of the D.C. Circuit Court of Appeals – the Supreme Court has once again delayed Trump’s prosecution, likely until after the November election, which was the defense’s strategy from the beginning.

The fact that the Supreme Court is going along with this delaying tactic is all the more disconcerting given that the question of Trump’s alleged immunity is ultimately about whether a president is above the law or must obey the law like any other citizen. In a democratic state governed by the rule of law, this should be common knowledge, not a matter of dispute before the highest court.

Against this backdrop, it is difficult to imagine how the Supreme Court Justices, who by definition are the guardians of the Constitution, could rule in favor of Trump’s alleged immunity. If the Court rules that former presidents cannot be prosecuted for their conduct while in office, it would jeopardize the fundamental principle that all people are equal before the law and that presidents do not have unlimited, king-like powers.

Given the court’s unanimous stance in Trump v. Anderson, there is speculation that it may also be eager to demonstrate the greatest possible unanimity in Trump v. United States, which seems conceivable only if the immunity claim is rejected outright.

But whatever the Supreme Court decides in this new case, the very fact that it is dealing with the immunity issue means that the criminal case against Trump for attempted election obstruction has been repeatedly delayed and is highly unlikely to be concluded (or even started) before the presidential election in November. Should Trump be re-elected, the Supreme Court will have been one of the most important enablers.

Authors bio

Peter Walkenhorst is Senior Project Manager in Bertelsmann Stiftung’s Europe’s Future Program, where he works on transatlantic relations and European-Chinese relations. Previously, he was a member of the foundation’s Germany and Asia Program, responsible for projects on the systemic conflict with China and social cohesion in Asia.

Read more on elections that matter for the EU on the GED Elections Page.

Read more on US-EU relations.

Will the US Supreme Court Disqualify Donald Trump from the Election? – Global & European Dynamics (globaleurope.eu)

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The Transatlantic Trade and Technology Council(TTC): EU-U.S. Cooperation in a Changing Geo-economic and Trade Environment

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