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”.