On the Smerconish broadcast, the issue arose of how and when a case involving Trump’s status under section 3 of the Fourteenth Amendment would get to the U.S. Supreme Court.

I made the point that a case is likely to reach the Court on its “shadow docket” this fall. Yesterday’s L.A. Times article helpfully notes this point.

But I think it’s crucial that this issue, as momentous as it is, be adjudicated on the Court’s merits docket, after full briefing and oral argument (even if on an expedited basis), rather than through the issuance of a “shadow docket” emergency decree.

In this regard, I think it’s worth distinguishing the issue of Trump being on the ballot for the Republican primaries versus Trump being on the ballot for the general election. In my mind, the balance of equities (which are relevant to “shadow docket” considerations) differ in the two contexts.

To be sure, as I’ve written previously, it would have been much better if the whole matter of Trump’s status under section 3 of the Fourteenth Amendment could have been resolved definitively one way or the other on the merits, after a full and fair adjudication of the relevant factual issues, before the beginning of the primaries. But that’s not where we are, unfortunately.

So what’s best for the nation in the current circumstances?

If a case reaches SCOTUS this fall without a full and fair evidentiary hearing, one in which Trump has the right to cross-examine witnesses against him (etc.), then I would hope that the Court exercises its “shadow docket” jurisdiction to entertain whatever kind of stay or comparable order is necessary to keep Trump on the ballot for the GOP primaries.

But that temporary “shadow docket” ruling wouldn’t preclude subsequent reconsideration of the merits of the matter, in time for a decision before the GOP convention next summer.

Hopefully, during that intervening period one or more states (including by new state statutes, as I’ve advocated) would have figured out a way to create an expedited trial that permits for full and fair adversarial consideration of the relevant evidence. At that point, SCOTUS would have the necessary record upon which to make a merits decision of Trump’s status under section 3.

To move matters along, SCOTUS could even grant cert in one of the “shadow docket” cases, at the same time as allowing Trump on the ballot for the primaries, so that briefing on the purely legal questions involved (i.e., is a president an “officer” for section 3 purposes) get underway as soon as feasible. Once the full and fair evidentiary hearing is complete in another one of these cases (assuming that happens), then that record can get quickly certified to SCOTUS, so that it has an adequate factual basis upon which to resolve all merits issues definitively. If the procedures are structured properly, it seems feasible to me that SCOTUS can have a full merits decision by next June, before the GOP convention in mid-July.

Having Trump on the ballot for the primaries but then not (hypothetically) for the general election, assuming the Court were to rule him disqualified, is not ideal. But, as I’ve said previously, a political party sometimes needs to deal with the loss of its nominee–or in this case, (again hypothetically) the winner of the most pledged delegates becoming disqualified before the meeting of its nominating convention. The party can handle that unfortunately development however it wishes, just as it might have to handle Trump having been convicted in one or more of the pending criminal cases after Trump has won enough primary votes to secure enough pledged delegates for the nomination. While those criminal convictions would not be constitutionally disqualifying, they might matter from a party governance perspective even though under its rules pledged delegates are bound on the first ballot. It would be for the convention to decide whether to amend or suspend its rules in light of the new relevant information that occurred after the primaries.

For the issue of Trump’s status under section 3 of the Fourteenth Amendment to be litigated this way–without a “shadow court” ruling that keeps Trump off the ballot based on an insufficient record, but then potentially a subsequent “merits” ruling after development of a full and fair evidentiary record–seems the best course available, and much better than Congress disqualifying Trump on January 6, 2025 after he’s been on the ballot for the general election and won 270 or more electoral votes.