Or so it sure seems.
The Supreme Court has posted notice (click on March 4 here) that “it may announce opinions on [its] homepage beginning at 10 a.m.” tomorrow but that the Court “will not take the bench.” (H/t Josh Blackman.) That’s as clear an advance statement as the Court would make that it will issue its ruling in the Trump disqualification case from Colorado (Trump v. Anderson) tomorrow. And that means that it’s nearly certain that it will rule for Donald Trump, probably in a unanimous opinion written by Chief Justice Roberts.
Let me briefly explain why I think so:
1. When the Court states that it “may” announce opinions on a day, that’s its coy way of saying that it affirmatively intends to announce one or more opinions.
2. The Court had not previously scheduled tomorrow for any action. The entire week of March 4 is open on the Court’s opening calendar. In the ordinary course (except in the last two weeks or so of the term), the Court doesn’t issue rulings in merits cases on previously unscheduled days. So it is exceptional that it is expediting tomorrow’s ruling.
3. The Trump disqualification case is the only already-argued case that I’m aware of that would clearly warrant expediting. The Colorado primary is on Tuesday.
4. It seemed clear from oral argument on February 8 that the Court was unanimous or near-unanimous in support of the proposition that Trump is not disqualified from the presidency under section 3 of the 14th Amendment. That the Court appears ready to issue a ruling 25 days later strongly suggests that there has not been any major change in the justices’ positions.
5. This is the sort of case that the Chief would assign to himself. As I stated on the day of oral argument, I anticipate that his opinion will hold that Congress has the exclusive authority to provide the means for enforcing section 3. (I’ll guess that his opinion will be agnostic on whether Griffin’s Case (1869) was rightly decided and will instead say it’s enough that it provided the backdrop against which Congress legislated.)
But maybe I’ll turn out to be very wrong on all of this.
One other point: The simple reason why the Court “will not take the bench” is because the justices use empty calendar weeks like this one to plan other activities (e.g., traveling to law schools or taking vacations). It’s likely that several justices have conflicts.