The Supreme Court on trial
The Supreme Court needs to decide whether the 14th Amendment bars Trump from running for or serving as President again, and whether the President – and therefore Trump – enjoys broad criminal immunity for acts taken while in office.
These cases highlight the intrinsically political nature of the Court itself. Many legal and political commentators believe that a unanimous decision is important for the country, and that consensus will be important to many of the Justices, especially Chief Justice Roberts.
What is especially striking is that many believe that the Court should achieve unanimity by overturning the decision of the Colorado Supreme Court removing Trump from the Republican primary ballot in that state. This is justified by pointing vaguely to the danger of unrest if Trump is removed from the ballot.
I agree that the Court needs to take the political consequences into account when it decides whether Trump can run for office. The Court cannot expect everyone to respect its decision, and the danger of political unrest is real. But the threat posed by a second Trump presidency is real as well, and far more important than the reputation of the Supreme Court. Trump may even stoke violence if he loses a close election.
It is far from clear that political considerations point towards keeping Trump on the ballot. Consider these alternatives, which I have not even seen discussed, never mind endorsed, by commentators concerned about the political aspects of this litigation:
Why not urge the Court – including the three Trump appointees – to unanimously kick Trump off ballot nationwide? Would this outcome be more dangerous than allowing Trump to run and possibly win? Would it be more dangerous than allowing Trump to run, win, and then be blocked from office by a democratic Congress on the grounds that he is ineligible (see Hasen discussing this danger)? Wouldn’t a clear statement by the Court’s conservatives, including the Trump appointees, that Trump lost the 2020 election and stoked an insurrection be persuasive to many Republican voters? Note that the Trump Justices may well have more credibility with Republican voters than a jury in Washington DC or Atlanta.
Why not uphold the Colorado decision and allow individual states to remove Trump from their ballots? A decision by even one swing state to remove him could tip a close election.
Why not allow Trump on the ballot for now, but emphasize that the evidence that he participated in an insurrection is clear and persuasive, that there is no evidence of fraud in the 2020 election, and warn that Trump could well not be allowed to assume office even if he wins? This would give Republican primary voters an incentive to choose a different candidate. And again, the Court’s conservatives, and especially the Trump appointees, are better positioned than any other actor in American politics to dispel the misinformation that Trump has spread concerning the 2020 election.
Why not allow Trump on the ballot, but send a clear message to federal district court judges (read: Aileen Cannon) to hear the charges against Trump expeditiously, so that voters can have the facts in front of them when they go to vote? Why not add that if Trump is convicted, he may not be able to serve as President?
I am under no illusion that the Court will do any of these things, and it is highly unlikely that it will do so unanimously. But why not point out that the Court certainly could do these things?
As Dahlia Lithwick notes, the conservatives on the Court have done a great deal to damage its reputation, and this will make it more difficult for the Court to navigate the politically fraught decisions it now needs to make (Mazie and Vladek make the same point). But why should the Court’s liberals be expected to bail them out? If the conservatives Justices are worried about the reputation of the Court, they should stop acting like politicians in robes (and pay for their own vacations and RVs). A good place to start is by keeping Trump off the ballot, or at least making clear that his behavior was completely unjustified, likely constituted an insurrection, and that the charges against him brought by Jack Smith need to be heard expeditiously. The liberals, in contrast, have no stake in defending the reputation of a partisan, conservative Court. Quite the opposite, damaging the Court’s reputation is a critical step towards reining it in.
P.S. 1:
Mazie and Vladek suggest that the Court should allow Trump to run and assume office if he wins, but rule against him on his immunity claim. This would allow the Court to strike a centrist pose. More substantively, the immunity ruling might allow Trump’s trial to proceed, which would (possibly) educate the public and result in a conviction in time to persuade voters that Trump is unfit to be President.
This could certainly happen, but there are lots of ways this happy story could go awry (the trial could be delayed, the jury could be hung, a verdict against Trump could backfire or be less persuasive than a clear statement by the conservatives on the Supreme Court that Trump engaged in insurrection, a war could break out or unemployment could rise, shifting public opinion away from Biden, etc.). If the Court goes this route, it should at a minimum note the strong public interest in resolving the cases against Trump expeditiously.
P.S. 2: Jonathan Chait has argued against keeping Trump off the ballot. In his most recent essay, he argues that the only way to defeat an authoritarian demagogue is at the polls. Lawrence Lessig makes a similar argument (along with the highly contestable claim that neutral principles of legal interpretation imply that Trump should win the 14th Amendment case).
It is true that if public opinion consistently favors authoritarian demagogues, a demagogue will eventually be elected. However, the appeal of authoritarians ebbs and flows, and political elites – including justices of the Supreme Court – can and sometimes do act responsibly to sideline authoritarians when the need arises. The need for responsible elites to preserve democracy is a main theme of How Democracies Die by Levitsky and Ziblatt.
P.S. 3: Do the conservative Justices really act like politicians in robes? See this piece by Cass Sunstein, which is remarkable in part because it is by Sunstein, who is respectful of the Court as an institution, a careful thinker, moderate in temperament, and charitable towards those he disagrees with.
P.S. 4: I have not discussed the legal merits of the 14th Amendment and immunity claims. Trump’s immunity claim is simply insane; as Kate Shaw notes it would turn the president into a monarch. The claim that Trump is ineligible to be President seems to be entirely plausible, but the “rules” of constitutional interpretation are sufficiently flexible to justify any decision while maintaining at least the pretense that the Court is just “calling balls and strikes”.
“Trump’s immunity claim is simply insane; as Kate Shaw notes it would turn the president into a monarch.”
Trump’s immunity claim would argue that if Biden had him assassinated to keep him off the ballot, Biden would be immune from prosecution.
It’s GOP doctrine these days that the only way to reign in presidential power is to impeach him, which is the Unitary Executive doctrine. The Dems hold that running for reelection is not a presidential duty as such, so it doesn’t fall under the privileges enjoyed by the president.
We will soon know how the Originalists among the Justices feel about this.
Under the UE doctrine, the president is in effect like a monarch.
Justices to Decide Whether Trump Is Eligible for Colorado Ballot
NY Times – about an hour ago
The Colorado Supreme Court ruled last month that the former president could not appear on the state’s Republican primary ballot because he had engaged in insurrection.
Previously…
Supreme Court rejects prosecutor’s push to fast-track ruling in Trump election subversion case
AP – December 22
Good stuff. Thanks.
(To some extent, the outcome of the next chapter in this saga is up to the Supreme Court.)
Clashing Over Jan. 6, Trump and Biden Show Reality Is at Stake in 2024
NY Times – just in
In dueling sets of speeches, Donald Trump and President Biden are framing the election as a battle for the future of democracy — with Mr. Trump brazenly casting Mr. Biden as the true menace.
Re “democracy” or “democracies”
Any alleged expert or layperson who talks about “democracies” AS IF a real democracy ACTUALLY EXISTS ANYWHERE IN THE WORLD (or has existed at any time in ‘human civilization’) is evidently a fool who’s repeating mindlessly and blindly the propaganda fed to them since they were a kid and/or is a member of the corrupt establishment minions whose job is to disseminate this total lie because any “democracy” of ‘human civilization’ has always been a covert structure of the rule of a few over the many operating behind the pretense name and facade of a “democracy”
“There is no America. There is no democracy. There is only IBM and ITT and AT&T and DuPont, Dow, Union Carbide, and Exxon. Those are the nations of the world today. […]. We no longer live in a world of nations and ideologies […]. The world is a college of corporations, inexorably determined by the immutable laws of business. The world is a business […].” — from the 1976 movie “Network”
“We can either have democracy in this country or we can have great wealth concentrated in the hands of a few, but we can’t have both.” — Louis Brandeis, Supreme Court Justice
Does anyone still not see how the deadly game on the foolish public is played … or still does not WANT to see it?
“We’ll know our Disinformation Program is complete when everything the American public [and global public] believes is false.” —William Casey, a former CIA director=a leading psychopathic criminal of the genocidal US regime
“Separate what you know from what you THINK you know.” — Unknown
Loucioux:
Nice rant.
I have been an advocate for strict enforcement of the Const. 14-3 and its clear provisions and its documented history for over two years. I posted here recently on 14-3. Months ago I warned of the nightmare, legal entanglements that would result if SCOTUS did not address and resolve the issue before the campaign season officially started. The Constitutional provision is not new and we have certainly known about the insurrection for 3 years now. In fact, there was considerable discussion and articles about 14-3 in January 2021, immediately following the January 6 insurrection. Legal action could have been initiated by Congressional members, DOJ, states, or NGOs months and months ago.
Now, here we are, in the woulda, coulda, shoulda department with the legal nightmare facing us head-on. It would have been much easier for SCOTUS to have decided months ago that Trump was ineligible to be on all the state ballots. The history of 14-3 is clear; Congress did not want insurrectionists or aiders & and abettors to such, who had taken an oath to support the Constitution, to run for ANY office in the government; certainly not the President. All of the legal efforts to try to fabricate legal interpretations to change history are bogus. However, now SCOTUS must attempt to, and probably will, fabricate some legally manipulated and twisted interpretation to justify Trump’s presence on the Colorado ballot. Also complicating, unless SCOTUS decides the Colorado case definitively, to quash all other existing and pending state challenges, the nightmare will continue.
My current thinking has now changed because we (the U.S.) did not address this issue 2+ years ago, and we are now immersed in the 2024 Presidential campaign. Congress may want to exercise the relief valve contained in 14-3, and simply give Trump a pass with a 2/3 vote and simply say it was granted as a one-time exception to avoid major disruptions in the 2024 election. Otherwise, Trump, MAGA & history will forever say it was a faulty election with no proven outcome and there will continue to be disrespect and lack of proper recognition for the Presidency. Even a highly likely, less than unanimous, SCOTUS decision in Trump’s favor could taint the true meaning and intent of 14-3 and upset confidence in U.S. elections, the foundation of our republic, forever. As the nightmare becomes more clear, there might be support in Congress for such a move.
Looking back — free passes have proven to be costly. Examples include: after the Civil War, Nixon, Reagan, Bush Cheney, Trump, …
Justices who follow originalism dominate in the US Supreme Court
Today a majority of U.S. Supreme Court justices are either self-described originalists or strongly lean toward originalism. Yet less than 50 years ago, originalism was considered a fringe movement, hardly taken seriously by most legal scholars.
So, what is originalism, and why is it so influential today?
Originalism is the theory that judges are bound to interpret the Constitution as it would have been interpreted in the historical era when it was written. Understood this way, originalism is the idea that judges must follow the law as written and not merely ignore it or reinterpret it to their liking.
(The 14th Amendment, section 3 says that ‘officers of the US’ who participated in or advocated insurrection can’t run for Federal office.)
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
(Apparently, if they meant it should apply to the ‘chief executive officer’ of the US, they should have said so right there in the text. He’s not just an officer, obviously.)
Now, if you were to buy me a luxury RV, I might see things differently.)