With democracy on the ballot in 2024, it’s hard not to view even judicial news through a political lens. But beware of pundits and scholars who insist that the judiciary must take politics into account when making decisions. The Supreme Court risks sliding down just such a slippery slope when it reviews Donald Trump’s Colorado ballot disqualification in what is sure to be a momentous case next month.
That case, and the similar Dec. 30 ruling by Maine Secretary of State Shenna Bellows, exemplify precisely why we have a Supreme Court: to deliver the last word on how to interpret the Constitution and apply it. The rule of law is threatened if the court treats constitutional provisions as more a matter of the nation’s politics than of law.
That case, and the similar Dec. 30 ruling by Maine Secretary of State Shenna Bellows, exemplify precisely why we have a Supreme Court.
In a New York Times op-ed last month, Yale law professor Samuel Moyn argued, in part, that Supreme Court justices should carefully consider the political risks of ruling against Trump. “It is not obvious how many would accept a Supreme Court decision that erased Mr. Trump’s name from every ballot in the land,” Moyn writes. “And rejecting Mr. Trump’s candidacy could well invite a repeat of the kind of violence that led to the prohibition on insurrectionists in public life in the first place.”
And it’s true that judges neither can nor should erase the political state of the union from their minds. The danger resides in replacing precedent and sound legal analysis with political concern as the dispositive factor in deciding.
Little could be more inimical to the supremacy of the Constitution and the rule of law. As political philosopher John Locke wrote in 1689, “Where law ends, tyranny begins.”
Section 3 of the 14th Amendment states:
No person shall... hold any office... under the United States... who, having previously taken an oath, as... an officer of the United States.. to support the Constitution... shall have engaged in insurrection or rebellion against the same...
After experiencing a civil war and rebellion against the Constitution, the country ratified the amendment in 1868, saying that no one who has broken their oath to support the Constitution, however popular they may be, should ever hold office.
Trump argued in his Jan. 3 petition to the Supreme Court that upholding the Colorado disqualification is "undemocratic." Indeed, that is the claim made in his filing's opening sentence. This from the guy whom the Colorado courts determined attempted to overturn the voters’ will.
In fact, the disqualification provision protects democracy by keeping out people who would overturn the constitutional order.
And it’s certainly no less democratic than the requirement of being a natural born citizen in order to become president. That qualification eliminates the voters’ right to elect Arnold Schwarzenegger, the popular former governor of California, as president.
It would be even more toxic for the Supreme Court to distort the words and history of the 14th Amendment to avoid disqualifying Trump because doing so might be "a recipe for violence," an argument made by Moyn and echoed by others, including far-right pundit Ben Shapiro. Caving to that kind of intimidation would give Trump’s base what the Supreme Court has condemned as a "heckler’s veto," where the heckler may be armed to the teeth.
In effect, those who award such a veto, as Yale historian Timothy Snyder put it on Jan. 1, become “public champion[s] of [their] own fears and others’ resentment” at the expense of constitutional order. That would be telling Trump’s followers, Snyder wrote, “that to undermine constitutional rule they must only intimate that they might be violent.”
As Snyder points out, unapologetic authoritarians like Trump need to destroy constraints on them. It would hurt us all if the court, a bulwark against autocratic power, further eroded its own institutional credibility with another decision like Bush v. Gore, a legal decision of “unbearable wrongness,” in the words of Harvard constitutional law professor Laurence Tribe, that “cost the court its legitimacy and hurt the country,” as another critic put it 20 years later.
Contrary to some commentators’ viewpoints, dissenting opinions would be useful to test the rigor of the majority decision and ensure the court’s intellectual integrity.
While other legal scholars like Northwestern Law School’s John O. McGuinness say that judges should consider only “what the law is,” that is not always crystal clear in uncharted legal waters like the ones courts are required to wade in here. Where principled decision making could tip either way, judicial statesmanship has a place as a kind of “tiebreaker.”
In such cases reasonable justices may disagree, and contrary to some commentators’ viewpoints, dissenting opinions would be useful to test the rigor of the majority decision and ensure the court’s intellectual integrity.
What is absolutely required is a legally credible opinion. Holding, as Trump’s petition to the court asks, that a president is not “an officer under the Constitution” within the meaning of Section 3 would be absurd. If the court ultimately requires states to keep Trump on the ballot, it will need to find a firmer basis than this one.
But whatever the Supreme Court’s decision, its credibility will depend on a legal analysis that withstands critical analysis. In the meantime, let’s stop treating this case as if the legal complexities are of secondary importance to potential political consequences.
To the contrary, reasoned judicial application of the Constitution is what ensures the health of the rule of law that protects us all. As screenwriter Robert Bolt had Sir Thomas More ask in “A Man for All Seasons”: If we “cut a great road through the law to get after the Devil, when the law was down and the Devil turned round on [us], where would [we] hide?”