Disqualifying Trump From The Ballot Is Required
A truly independent judiciary would just do it; ours only will with the right encouragement
The Colorado Supreme Court has ruled that Donald Trump must be omitted from the state’s 2024 election ballots for engaging in insurrection against the United States, partially overturning a lower court judge who—out of fear or excessive deference—held that the Constitution exempted Trump from the disqualification clause of the 14th amendment.
Other courts in other states may now feel unencumbered and follow suit, because the U.S. Supreme Court will pretty much have to settle the question at this point. In anticipation of Trump’s appeal, the Colorado justices stayed their own ruling until January 4, one day before the state’s deadline to certify the presidential primary ballot.
I have not read every word of the 200-page decision yet. (We journalists get to the gist quickly using closely guarded secret tricks like “read the beginning,” and “read the end.”) But I wanted to home in on one passing admonition, because I think it’s actually profound, and rests at the heart of a significant debate over how to protect the country from fascism.
“We do not reach these conclusions lightly,” the four-justice majority wrote. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
I do not believe this is judicial boilerplate, though it reads that way. I believe the justices are confirming that they and their colleagues face a level of threat and menace from Trump supporters that’s incompatible with the rule of law. Applying the law faithfully is a recipe for death threats and rioting, and some judges, thus, grant Trump impunity. They bend to mob pressure (or are “swayed by” it) and convince themselves that some larger civic or prudential good is served by giving in to extortion.
Unfortunately this weak-kneeism isn’t limited to judges. And that’s especially regrettable because the Supreme Court itself is plainly swayed by public pressure and elite signaling. There is a way to think about this question that is both correct on the merits and would increase the chances, however slight, that SCOTUS will do the right thing. But if even Trump’s opposition won’t frame the stakes that way, the odds drop to zero.
INSURRECTION CIRCUMSPECTION IMPERFECTION
Jonathan Chait reacted to the news by tweeting, “the politics and civics of this move are awful. Hope/expect SCOTUS to overturn,” then elaborated in an odd way. The prudential concerns, he argues, are so serious that any adverse ruling must be “unassailable”—a standard that effectively exempts MAGA, which exists to assail even sky-is-blue truths—then glosses over all the work the Colorado courts did to meet that standard anyhow.
“I am not a lawyer and I won’t comment on the legal merits of the case,” he added, but, “the weak point in this argument is the finding that Trump’s behavior constitutes ‘insurrection.’”
Set aside for a moment the fact that even leaders of the Republican Party called January 6 an “insurrection” and blamed Trump for it. Chait’s claim isn’t adjacent to the legal merits of the case at all—it cuts right to the heart of them. Both the Colorado Supreme Court and the lower court judge agree on the legal merits that Trump engaged in insurrection as proscribed by the Constitution. That much was established after a week-long trial.
The judges disagree only insofar as there’s textual ambiguity over whether the 14th amendment applies to presidents. Even the dissenting justices don’t seek to exonerate Trump of engaging in insurrection.
Perhaps there is some smoking-gun scenario—an email from Trump saying “let’s engage in insurrection”—that would address Chait’s objections. But I see the same forces the Colorado justices warned against at work. Only under the most outlandish circumstances would a seditious candidate like Trump be unable to point to some ambiguity around whether he’d actually “engaged in insurrection.” And if that’s the standard, the disqualification clause would serve little purpose.
SCOTUS ON NOTICE
Let’s stipulate (because it’s true) that Donald Trump did engage in insurrection, but that U.S. Supreme Court justices won’t simply apply the Constitution in a straightforward way. Political and civic considerations will seep into their decision-making process, because the stakes are so very high. If so, they need to think expansively about the consequences of their actions beyond simply assessing that Trump supporters will react in destabilizing ways.