Could the Supreme Court actually disqualify Trump?
Conventional wisdom has it that a conservative-leaning Supreme Court featuring three Trump nominees would reject the premise for disqualification, allowing his name to remain on the ballots.
Not everyone takes that outcome for granted — including Trump, according to the New York Times’s Maggie Haberman. Here are some of the other ways that legal scholars suggest a Supreme Court ruling could go.
The court will surely affirm
Perhaps the most prominent figure suggesting the court could shock the political world is J. Michael Luttig, a renowned conservative former federal appeals court judge turned prominent Trump critic.
When the Colorado Supreme Court broke ground by kicking Trump off the state’s primary ballot last month, Luttig called the decision “unassailable.” (Three of seven justices dissented, but mostly by citing state law, which is outside the U.S. Supreme Court’s purview. The others disqualified Trump for violating the 14th Amendment’s ban on officials who “shall have engaged in insurrection.”) Luttig also predicted that the U.S. Supreme Court would affirm Colorado’s ruling.
And he hasn’t changed his mind.
“If the Supreme Court takes the Colorado Supreme Court case, I believe it will affirm that court’s decision to disqualify the former president from the state’s primary ballot,” he said this week.
There’s a slim chance the court will affirm
Others are less sanguine about the prospect of the court’s ruling against Trump but suggest it’s possible.
UCLA law professor Rick Hasen called it “not at all legally far-fetched for the court to disqualify Trump.”
Hasen cited the paper that spurred efforts to disqualify Trump, written by the conservative legal scholars William Baude and Michael Stokes Paulsen, whose “scholarship is often looked at by the conservative originalists on the Supreme Court,” Hasen said.
Another scholar who has examined the 14th Amendment argument in detail, even before it became more relevant post-Jan. 6, is University of Maryland law professor Mark A. Graber. He published a book on the subject last year titled “Punish Treason, Reward Loyalty.”
“Given how strong the historical evidence is, I think disqualification has a puncher’s chance at the Supreme Court,” Graber said, “but no more.”
He said that “this is a court that either uses originalism selectively or invents history.”
The court will slow-walk
Still others echo the assertion that the evidence is strong but say they don’t have confidence that the court will necessarily follow it — or even decide the central issue of whether Trump engaged in insurrection.
“I think the case for upholding the disqualifications is kind of a straightforward legal one,” said University of Michigan law professor Leah Litman. The fact that many prognosticators assume the court will nonetheless rule for Trump “is a sign that most people understand that the justices/court don’t just decide these cases based on ‘the law,’” she added.
For Vanderbilt University law professor Suzanna Sherry, the problem is this: “The justices do not want to decide this case. If they can find any way to avoid doing so, they will. If they can kick the can down the road until after November, when it will become moot, they might do that.”
Indeed, there are several routes the court could take that fall short of disqualifying Trump from the presidency or even deciding whether he engaged in insurrection.
It could decline to rule expeditiously, which would leave that central question in limbo but could effectively keep Trump on the ballot in both Colorado and Maine. (Both states’ decisions are stayed pending appeals.)
The court will limit the consequences
It could rule that states are allowed to remove Trump from the primary ballot under their interpretations of the 14th Amendment but stop short of applying that to the more consequential general election ballot.
(Luttig’s prediction notably applies to the primary ballot.)
Some of those who say the Supreme Court could surprise us have cited now-Justice Neil M. Gorsuch’s related 2012 appeals-court opinion, which those who disqualified Trump in Colorado and Maine also referenced. Gorsuch, in that opinion, cited “a state’s legitimate interest in protecting the integrity and practical functioning of the political process,” which “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”
The court will split the baby
Perhaps the most popular theory is that the court will punt. That could involve saying that Trump must first be convicted of insurrection, saying the 14th Amendment isn’t self-executing (in other words, Congress must pass a law detailing how it is to be enforced), or doing what a Denver district judge initially did and ruling that the 14th Amendment doesn’t apply to presidents.
University of Texas law professor Steve Vladeck suggested in a column that the court could echo that judge in another way: also finding that Trump engaged in insurrection, an outcome he called “the closest thing for the court to a win-win” in such a fraught case.
“The court won’t be keeping Trump off the ballot, but it won’t be endorsing his candidacy, either,” Vladeck wrote. “If anything, having Republican appointees joining Democratic appointees in holding that Trump did engage in insurrection might go a long way toward persuading those who are capable of being persuaded to cast their vote for someone else.”
The political calculus
As Vladeck’s column suggests, the politics of this aren’t so simple — even if they’re a consideration for the justices.
Yes, the court leans conservative, and conservatives in the United States are overwhelmingly in Trump’s corner.
But justices present a different political proposition than elected officials. Republicans in Congress have toed Trump’s line, but often reluctantly, and often in ways that suggest there is discontent beneath the surface. Unlike those who have to worry about the next primary and their political futures, justices have lifetime appointments.
There’s also a case to be made that disqualifying Trump might actually be good for the conservative movement, by taking a flawed candidate out of the picture.
“If they think Republicans have a better chance with Trump off the ballot, they will affirm,” Sherry predicted. “If they think Republicans have a better chance with Trump on the ballot, they will reverse.”
Such a calculation might be more nuanced. The court might also fear a backlash from Trump supporters for taking the huge step of disqualifying a candidate supported by tens of millions of Americans. But the justices would also be more insulated from that backlash than your average official.
And Hasen argued that we shouldn’t assume they feel some kind of loyalty to Trump.
“I think there’s no love lost between Trump and many of the conservatives on the Supreme Court,” Hasen said. “Some may think they’d be doing the Republican Party a favor to get rid of Trump, to the extent they think in any purely partisan calculation.”
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