Several rulings in the coming days are expected to have a major impact on the election, shaping the public conversation and former President Donald Trump’s legal calendar as Democrats are ramping up efforts to make the Supreme Court a key issue in their 2024 campaign.
With opinion days scheduled for Wednesday, Thursday and Friday, any number of consequential Supreme Court rulings on issues ranging from Trump’s presidential immunity appeal to Idaho’s abortion ban could come down on the heels of the first presidential debate. Democrats are already turning the Supreme Court into a central campaign issue: a $1 million campaign launched Monday — the two-year anniversary of the Supreme Court’s decision to overturn Roe v. Wade — asks people to become a “Supreme Court Voter,” highlighting that four of the nine current justices will be in their 70s by 2025.
“Joe Biden and Senate Democrats are desperate to make the Court a 2024 campaign issue because they know that the Court adheres to the Constitution and the rule of law, rather than the Left’s extreme agenda,” Judicial Crisis Network President Carrie Severino told the Daily Caller News Foundation. “Expect the unhinged attempts to discredit the Court to pick up in earnest after the Supreme Court term ends.”
The Supreme Court’s decision on Trump’s presidential immunity appeal will determine the direction of the case brought against him by special counsel Jack Smith in Washington, D.C., which is currently on hold pending the ruling. Trump was indicted in August on four counts related to alleged efforts to overturn in the 2020 election results and his involvement in Jan. 6.
Trump is seeking to dismiss the case based on the argument that he has immunity from prosecution for official acts taken while in office.
While many believe Trump’s appeal effectively dashed any hopes for Smith to bring the case to trial before the election, former federal prosecutor Andy McCarthy noted in the National Review that it may still be possible on more limited grounds. (RELATED: Judge Merchan Partially Lifts Trump’s Gag Order, Still Prevents Him From Criticizing Bragg’s Team)
“Trump’s appellate attorney, John Sauer, ceded lots of ground at oral argument (especially in questioning by Justices Amy Coney Barrett and Elena Kagan), acknowledging that some of the central allegations in the indictment are not conceivably covered by immunity,” he wrote. “Consequently, regardless of whether the Court concludes that former presidents have no immunity, or that they have fairly robust immunity for official actions within the scope of presidential duties, Smith is going to have a prosecutable case left.”
McCarthy noted Smith may choose to just go forward with the conduct Sauer already conceded, or that which the Supreme Court agrees, is not subject to immunity.
“If [Judge] Chutkan, who seems quite hostile to Trump, were willing to indulge Smith and push hard to get the pretrial work done by, say, Labor Day, it would still be possible to have a trial prior to Election Day,” he continued.
Trump, Censorship And Abortion: Here Are The Final Big Rulings SCOTUS Is Expected To Release This Week@DailyCaller https://t.co/4NLzKzwEv8
— Katelynn Richardson (@katesrichardson) June 24, 2024
Another Supreme Court case considering the scope of an obstruction statute used against Jan. 6 defendants, Fischer v. United States, could also complicate Smith’s prosecution, as two the counts in the indictment relate to the charge.
The indictment against Trump alleged he used “knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.” Smith suggested in a brief that the charges connected to the obstruction statute would be legitimate even if the Supreme Court sides with Fischer’s argument that the statute was meant to target crimes of evidence tampering, noting “the use of falsehoods of creation of ‘false’ documents satisfies an evidence-impairment interpretation.”
Democrats and left-wing groups have called on both Justices Samuel Alito and Clarence Thomas to recuse themselves from cases related to Jan. 6, which are among the most consequential on the term’s docket. Alito, who Democrats criticized after the New York Times reported on an upside-down flag briefly flown outside his home, directly refused to do so, writing “a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases” would not conclude a flag flown at his home by his wife met the standard for recusal.
The Supreme Court will also rule on a handful of other cases that could influence how candidates discuss key issues. (RELATED: Supreme Court Rules Trump Cannot Be Removed From Colorado Ballot)
A decision is coming on Idaho’s abortion ban, which the Biden administration claimed conflicts with the Emergency Medical Treatment and Labor Act’s (EMTALA)’s requirement for doctors to provide emergency “stabilizing care.” The DOJ sued the state in August 2022, just over a month after the justices revered Roe v. Wade.
The justices already ruled on a challenge brought by pro-life doctors and medical associations, finding unanimously that they did not have standing to bring their case and leaving in place the FDA’s current regulations. In response, Biden said the ruling “does not change the fact that the fight for reproductive freedom continues.”
A ruling in Murthy v. Missouri, which asks the justices to consider whether the Biden administration’s efforts to encourage social media companies to censor speech online violates the First Amendment, is also expected by the end of the week. The case exposed the government’s frequent requests for companies to suppress “misinformation” on topics ranging from COVID-19 to the 2020 election.
The Supreme Court already unanimously rejected in March efforts to keep Trump off the ballot in a number of blue states.
During a fundraising event in Los Angeles earlier this month, Biden said the prospect of Trump nominating more justices would be “one of the scariest parts” of him winning the White House, according to CNN.
“The Supreme Court has never been as out of kilter as it is today, I mean never,” Biden said.
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