‘Judged by history’: Trump’s 14th Amendment fight at Supreme Court poses an enormous test for John Roberts

For Donald Trump, the fate of a presidential campaign will hang in the balance when the Supreme Court meets Thursday to hear a politically fraught challenge to his eligibility to appear on Colorado’s ballot.

For Chief Justice John Roberts, it is at least in part a legacy that will be on the line.

Since joining the bench in 2005, Roberts has built a reputation of trying to steer the court clear of the partisanship that vexes the rest of Washington. But Roberts’ middle-ground, go-slow approach could face its greatest test as the former president and frontrunner for the GOP nomination keeps showing up to a Supreme Court he has helped to fashion.

The chief justice, who turned 69 last month, must navigate an unwieldy group of colleagues – some of whom have openly complained about internal mistrust in recent years. Into that fray will now land a novel question of criminal immunity for a former president and one of the most charged election disputes in history.

The court hears arguments Thursday about whether Trump violated the 14th Amendment’s “insurrection ban” when he ginned up a rally on January 6, 2021, before the attack on the US Capitol. If the Supreme Court rules that Trump engaged in insurrection and ran afoul of the post-Civil War ban, it would effectively end his campaign.

And Trump now also appears certain to come up to the Supreme Court on another matter soon: his claim that he is entitled to absolute immunity in special counsel Jack Smith’s criminal election interference case. A federal appeals court rebuffed that argument Tuesday and said Trump would have to ask the Supreme Court if he wants to further delay his trial.

That request will go to Roberts.

The two men – Roberts and Trump – couldn’t be more different. Roberts, a soft-spoken conservative, is an institutionalist, widely seen as trying to preserve Americans’ faith in the Supreme Court. Trump has derived power by running against institutions and has openly slammed the justices, including his own appointees, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, for siding against him in previous cases.

For any chief justice, the best outcome is usually one that yields a unanimous vote – or something close to it. When it comes to the election case, many experts believe his easiest path will be a narrow decision in which Trump remains on the ballot and the Supreme Court avoids sweeping conclusions about Trump’s actions.

“It would be much better if it was unanimous and it didn’t look like a partisan decision,” said Tom Ginsburg, a professor at the University of Chicago Law School and co-author of a 2018 book about the threat of democratic decay. “The challenge for Roberts is to take a jurisprudential route that will get nine votes.”

That may involve looking for legal “off ramps” that settle the case in a limited way. The court, for instance, could rule that the insurrection ban doesn’t apply to presidents or that it requires a law from Congress to be enforced.

Trump’s appeals are arriving at a time when faith in the Supreme Court has slipped to record lows, polls show, as many Americans – particularly on the left – view it as another political branch. The court’s approval plunged after the justices let stand a strict abortion law in Texas in 2021, overturned Roe v. Wade the next year and then found itself embroiled in a series of ethics scandals.

Roberts’ soft power of persuasion has often resulted in middle-ground positions that bring together some combination of the court’s six conservatives and three liberals. In June, he cobbled together a 6-3 majority that rejected a Trump-backed theory that state legislatures have virtually unchecked power to set voting rules, but that also left ambiguous the extent of the courts’ authority to intervene.

Other times, those efforts have failed. When the Supreme Court overturned Roe v. Wade in 2022, the chief justice staked out a position that would have permitted more restrictive abortion laws but left the landmark 1973 precedent mostly intact. Not a single one of his colleagues joined him.

Some of the most significant decisions in Supreme Court history have been inextricably tied to the chief justice who presided over them. When court observers think of the school desegregation cases in the 1950s, they often think of Chief Justice Earl Warren, noted Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. When they think of the Watergate tapes case in 1974, they often associate the outcome with Chief Justice Warren Burger.

Those seminal cases were decided unanimously.

“It’s going to be difficult to separate whatever the court does in this case from the identity of its current presiding officer,” Vladeck said. “And the question becomes just how much Chief Justice Roberts will be able to lead the court to a result that will enhance, rather than further undermine, public confidence.”

Roberts, appointed by President George W. Bush, joined the Supreme Court nearly five years after it decided another hugely controversial election case, Bush v. Gore, in 2000. In that case, a 5-4 majority ended recounts in Florida and effectively handed Bush the victory over then-Vice President Al Gore.

Roberts, then a private attorney, was part of Bush’s legal team in Florida that year. But he also witnessed the fallout from a decision that divided the nation and drew considerable scrutiny to the court. The late Justice Sandra Day O’Connor, who died in December, later expressed regret that she and her colleagues had taken up the dispute.

O’Connor told members of the Chicago Tribune editorial board in 2013 that she was not sure the court should have intervened. The case, she told the newspaper, “stirred up the public” and “gave the court a less-than-perfect reputation.”

On the other hand, some of Trump’s critics believe Roberts’ legacy could be harmed by pursuing an easy way out of the political thicket.

“How will you be judged by history? How will you be judged by the people tomorrow? These are unknowables,” said Stuart Gerson, an attorney who held top roles at the Justice Department during the George H.W. Bush and Bill Clinton administrations.

“My opinion is that we need to stand up for the rule of law,” he said. “If there are consequences, we need to face them.”

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