The Most Consequential Supreme Court Term Yet

As 2024 kicks off, the Supreme Court is poised to make monumental decisions on Donald Trump and abortion rights.

The Supreme Court as composed June 30, 2022 to present. Credit: Fred Schilling, Collection of the Supreme Court of the United States.

After two years of monumental, shattering rulings from the Supreme Court, which is now stacked with a 6-3 conservative supermajority, few observers expected that 2024 could carry even greater legal weight and consequence. 

But then again, few expected that in 2024, Trump would not only be criminally charged with 91 counts, but would somehow remain in firm control of the Republican Party and still maintain front-runner status for the GOP’s presidential nomination.

The world is upside down.

In this politically perilous year, the High Court finds itself facing at least two existential decisions around Donald Trump himself: one over his basic eligibility for federal office, and the other over whether he can even be criminally prosecuted for actions taken while he was president.

To these Trump matters, we can also add two explosive abortion cases to the Court’s docket: one that could limit availability of a popular and effective abortion medication, and another that could effectively end all abortions, without exceptions, in some of the nation’s reddest states.

The Court’s upcoming decisions could reshape society, and they certainly shape the course of our national election. As just one example, depending on how rapidly it hears Trump’s appeals, the Court could ensure Trump is tried for federal crimes before the election—or it could cause him to be never tried at all. And the Court’s abortion rulings could either fire up or tamp down voter turnout on the hottest of the hot button issues.

In today’s piece, I’ll explore four big cases around Trump and abortion rights already making their way before the Court and discuss specifically how each could impact the election in November.

Trump’s eligibility to appear on the primary ballot in Colorado

The Supreme Court has granted review of the Colorado Supreme Court’s narrow 4-3 decision to ban Donald Trump from that state’s primary ballot under Section 3 of the 14th Amendment. It seems determined to move expeditiously, ordering the first briefs due by January 18 and setting the hearing date for February 8. A ruling likely would come before the primary itself in March. This rapid briefing and hearing schedule reveals that the Court understands the need for clarity and prompt resolution of this matter.

The Colorado Supreme Court had upheld a state district court’s finding that Trump engaged in insurrection and therefore, under Section 3, he was ineligible to hold federal public office. It is hard to argue that the text of Section 3 does not support this outcome. Yet this question remains one of first impression for the Supreme Court because no major presidential candidate has ever been disqualified by any state under the Constitution’s ban on insurrectionists. The Supreme Court will need to rule one way or the other in order to avoid and resolve inconsistencies among the states.

If the Court were to uphold the Colorado decision—a result considered fairly unlikely yet still possible—Trump’s disqualification from the Colorado ballot likely would spread rapidly to other states. He already faces challenges in dozens of cases across the country, including pending challenges in important swing states such as Nevada and Wisconsin where removal from the ballot would make it nearly impossible for him to reach 270 electoral college votes.

If the Court were to reverse the Colorado decision, the way it does so will matter. Many legal observers agree that if the Court is going for consistency, it must base any reversal on grounds that apply to all states and all cases. It could find, for example, that Section 3 is not “self-executable” and requires a further act of Congress. Or it could hold that it applies only retroactively to officials of the Confederacy, or that Trump is not an insurrectionist as a matter of law, or that Section 3 does not apply to the office of the presidency. 

A ruling simply reversing the Colorado Supreme Court on grounds specific to that case, for example, that he was not afforded sufficient due process in this specific instance, would keep the matter alive elsewhere. And those are legal embers that the Court likely would be at pains not to allow to smolder.

The Supreme Court has not held so much sway over the outcome of a presidential election since it ruled in favor of George W. Bush in the aftermath of the 2000 election. That 5-4 decision, which was not the Court’s finest hour of jurisprudence, put an end to Al Gore’s quest for the presidency, and he accepted it with grace and for the sake of national unity. Were the Supreme Court to surprise everyone and vote to keep Trump off the ballot in Colorado, it’s likely that Trump and his supporters will not take the news nearly so well.

Trump’s claim of absolute presidential immunity

As of the time of this piece’s publication, Trump’s lawyers have likely finished their arguments before the D.C. Circuit Court of Appeals. They are seeking to have the appellate court overrule Judge Tanya Chutkan’s denial of Trump’s claim of absolute presidential immunity. Hard as it is to conceive, Trump essentially is arguing that his multiple conspiracy counts to overturn the 2020 election must be dismissed because, as a former president, he cannot be criminally prosecuted for acts undertaken while in office. On Monday, Trump also made the same immunity argument before the court in the Georgia RICO case.

There is no legal precedent that supports such a sweeping claim, and recent D.C. Circuit decisions have held that former presidents can be civilly sued for extra-official actions that caused injury to others, such as Trump’s actions on January 6th that led to physical injury of Capitol Police officers. It is hard to see how any Court could rule in his favor and grant presidents complete get-out-of-jail free passes. Indeed, if Trump is correct, President Biden could theoretically act outside of his authority in the name of “election integrity” and place Trump in detention in Guantanamo—and Biden couldn’t be charged for that crime later. That’s an absurd position, but it’s also the logical conclusion should Trump’s broad immunity claims be accepted.

But Trump isn’t playing to win, he is playing to delay. If he loses his appeal, as expected, and even if the D.C. Circuit moves rapidly to issue its opinion, Trump will eat up valuable time while his appeals from that ruling are pending. That’s because as things currently stand, this federal trial in D.C. is on hold while his immunity appeals are pending. 

If the Supreme Court decides to slow walk the appeal, it conceivably could delay the trial so long that it might not be able to be resolved before the election in November of 2024. After that, if Trump wins the election, he could in theory order a new Attorney General to drop the charges, or he could seek proactively to pardon himself, throwing yet another legal question of first impression before the Supreme Court.

It’s hard to imagine that the Supreme Court—or at least four members of it—aren’t fully onto his strategy. A decision from the D.C. Circuit likely will deny Trump’s claim of immunity and set an outside limit for how long he has to appeal before lifting the stay on the case. That could cause a minimum delay of at least a few more weeks before SCOTUS will weigh in, meaning the original March 4, 2024 trial start date is nearly certainly going to be pushed back.

One simple response from SCOTUS would be to deny review, ending the appeal right then and there. Another would be to grant review and to agree to an expedited review process. But there’s always the possibility that the Court’s conservative members will opt for delay and hand Trump a victory by keeping the calendar from moving forward. 

We will have to wait and watch.

Extremists’ frontal attack upon abortion medication

When the Court issued its shocking Dobbs opinion in June of 2022, members of the conservative majority may have naively believed that the matter was now settled as far as the federal government was concerned. The “question” of abortion would be returned to the states to work out on their own.

But it was never going to be that simple. That’s because anti-abortion forces would inevitably be unsatisfied with a system that allowed women in any state easy and effective access to abortion, the very kind that something like popular abortion medications provided.

That’s why they targeted mifepristone, a safe and popular drug used in over half of abortions in the U.S. If they could take this drug out of pharmacies, it would make abortions that much harder for all women in all states to obtain.

Anti-abortion forces ginned up a federal lawsuit with a newly formed anti-abortion “doctors” group and filed it in Amarillo, Texas. They judge shopped in that forum knowing it would be heard before the most anti-abortion federal judge in the country, Matthew J. Kacsmaryk, a Trump nominee with long-held anti-abortion views. Judge Kacsmaryk dutifully did his part by ruling that the FDA had exceeded its authority in approving the drug over 20 years ago. 

That a single judge might be able to block availability of an abortion drug for the entire country is a galling example of judicial activism and overreach. On appeal, the conservative Fifth Circuit limited his ruling in time, upholding the part of Kascmaryk’s order that blocked changes to the drug begun in 2016, including how it was prescribed and distributed and at what point in the pregnancy it could be used. The Supreme Court agreed to hear an appeal from that decision this term.

Fortunately, the Supreme Court so far has expressed skepticism toward that appellate court opinion, agreeing with the Biden Administration’s request and ordering that the existing rules for prescribing and distributing mifepristone remain in place pending resolution of the case. (Two justices, Alito and Thomas, dissented from this.)  And at this time, it looks likely that the Court will not be keen to wade further into the national abortion debate by helping extremists outlaw abortion medication through the courts.

A decision is expected this term. But even if the Court overrules the Fifth Circuit and keeps mifepristone available under current rules, the fact that the Court came close to outlawing a popular abortion medication will underscore how abortion rights and access hang by a thread, even for women living in blue states. All they need is a few more extremist justices to make it a frightening reality.

The limits of red state abortion bans

For abortion rights activists, a dystopian future for women seeking abortion has already emerged in places like Texas and Idaho, where draconian bans have sprung into effect. The conservative Fifth Circuit, with a panel of all Republican appointees including two Trump-appointed extremists, recently ruled that federal law and guidelines covering the provision of abortion care to women does not override Texas state law, which bans abortions except where medically necessary to save the life of the mother or prevent serious bodily injury. 

On this question generally, the Supreme Court recently provided a frightening signal. While it is considering an appeal of a Ninth Circuit ruling against the state of Idaho, the Supreme Court left in place an Idaho law that bans abortions in nearly all cases except where the life of the mother is at risk. That same law penalizes abortion care providers with five years in prison, so this effectively means that abortions are nowhere available in Idaho because few doctors and hospitals will risk running afoul of the law.

In both the Texas and Idaho cases, the Biden Administration argued that federal law requiring the provision of necessary abortion services in the case of medical emergencies should take precedence over state law. If a majority of the Supreme Court disagrees, as now seems likely, that will remove what little is left of federal protections for abortion rights and allow extremist state laws to have their full and awful force and effect.

Such a ruling, expected in late June, would thrust abortion rights back into the national spotlight and encourage even greater abortion extremism on the part of officials in GOP-controlled states. The need for state-level constitutional protections of the right to abortion will then become even more apparent, and efforts to enshrine those rights by way of constitutional amendments in key states such as Nevada, Arizona, and Florida could gain significant traction.

This possibility might give certain more cautious members of the conservative majority on SCOTUS some pause. The Dobbs decision was a political earthquake whose aftershocks are still reverberating. In election after election since that ruling, abortion rights have prevailed whenever placed before the voters, even in deeply red states such as Ohio and Kansas. 

The justices may not wish to disturb the political landscape once again over the question of abortion, just months before a defining, national election. But the perverse logic of their prior, extreme opinion in Dobbs may compel them to rule in favor of radical abortion bans once more, smack in the middle of an election year.