Should Donald Trump be disqualified from state ballots in presidential election? Here’s how the US Supreme Court might rule

By John Hart, Australian National University

The US Supreme Court will hear oral arguments this week in former President Donald Trump’s appeal against the decision to exclude him from the ballot in the Colorado Republican primary for this year’s presidential election.

The Colorado Supreme Court ruled in December that Trump was disqualified from holding the office of president under Section 3 of the 14th Amendment to the Constitution because he engaged in an insurrection on January 6, 2021.

Because the Republican primaries have already begun (Coloradoans vote on March 5) and the US Supreme Court’s current term ends on June 30, the nine justices have very little time to consider such a momentous dispute with so many constitutional issues to be clarified.

So, what will happen this week and how might the court rule?

How does the Supreme Court operate?

Each side is usually allotted 30 minutes to present their case in oral arguments, but the lawyers are almost always interrupted by questions from the justices. The questioning can provide clues as to how the justices might be leaning.

The justices then meet in private to discuss the case and form a preliminary opinion. The chief justice, John Roberts, has the power to determine which of the justices will draft the written opinion, but only if he is in the majority. If not, that power transfers to the next most senior justice in the majority.

The draft opinion will be circulated to the other justices and is subject to their suggestions and possible alterations. This is almost a political exercise because the justice writing the opinion needs to get four other justices to sign the draft, or, at least, support the decision.

He or she would also want to minimise the number of dissenting or concurring opinions that would, inevitably, undermine the force of the court’s majority opinion. It is an exercise in coalition-building to forge that majority, which is never certain until this final stage of the process.

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