XPost: law.court.federal, alt.fan.rush-limbaugh, talk.politics.guns
XPost: alt.politics.elections

When Donald Trump appeals the Colorado decision disqualifying
him from the ballot in that state’s Republican primary, the
Supreme Court should overturn the ruling unanimously.

Like many of my fellow liberals, I would love to live in a
country where Americans had never elected Mr. Trump — let alone
sided with him by the millions in his claims that he won an
election he lost, and that he did nothing wrong afterward. But
nobody lives in that America. For all the power the institution
has arrogated, the Supreme Court cannot bring that fantasy into
being. To bar Mr. Trump from the ballot now would be the wrong
way to show him to the exits of the political system, after all
these years of strife.

Some aspects of American election law are perfectly clear — like
the rule that prohibits candidates from becoming president
before they turn 35 — but many others are invitations to judges
to resolve uncertainty as they see fit, based in part on their
own politics. Take Section 3 of the 14th Amendment, which blocks insurrectionists from running for office, a provision originally
aimed at former Confederates in the wake of the Civil War. There
may well be some instances in which the very survival of a
democratic regime is at stake if noxious candidates or parties
are not banned, as in West Germany after World War II. But in
this case, what Section 3 requires is far from straightforward.
Keeping Mr. Trump off the ballot could put democracy at more
risk rather than less.

Part of the danger lies in the fact that what actually happened
on Jan. 6 — and especially Mr. Trump’s exact role beyond months
of election denial and entreaties to government officials to
side with him — is still too broadly contested. The Colorado
court deferred to a lower court on the facts, but it was a bench
trial, meaning that no jury ever assessed what happened, and
that many Americans still believe Mr. Trump did nothing wrong. A
Supreme Court that affirms the Colorado ruling would have to
succeed in constructing a consensual narrative where others —
including armies of journalists, the Jan. 6 commission and
recent indictments — have failed.

The Supreme Court has been asked to weigh in on the fate of
presidencies before, and its finer moments in this regard have
been when it was a force for stability and reflected the will
and interests of voters. Almost 50 years ago, the court faced a
choice to end a presidency as it deliberated on Richard Nixon’s
high crimes and misdemeanors. But by the time the Supreme Court
acted in 1974, a special prosecutor, Leon Jaworski, had already
won indictments of Nixon’s henchmen and named the president
himself before a grand jury as an unindicted co-conspirator.
Public opinion was with Jaworski; the American people agreed
that the tapes Nixon was trying to shield from prosecutors were
material evidence, and elites in both political parties had
reached the same conclusion. In deciding against Nixon, the
Supreme Court was only reaffirming the political consensus.

As the constitutional law professor Josh Chafetz has observed,
even United States v. Nixon was suffused with a rhetoric of
judicial aggrandizement. But if the Supreme Court were to
exclude Mr. Trump from the ballot, seconding the Colorado court
on each legal nicety, when so many people still disagree on the
facts, it would have disastrous consequences.

For one thing, it would strengthen the hand of a Supreme Court
that liberals have rightly complained grabs too much power too
routinely. Joe Biden came into office calling for a re-
examination of whether the Supreme Court needs reform, and there
would be considerable irony if he were re-elected after that
very body was seen by millions to pre-empt a democratic choice.

Worse, it is not obvious how many would accept a Supreme Court
decision that erased Mr. Trump’s name from every ballot in the
land. Liberals with bad memories of Bush v. Gore, which threw an
election to one candidate rather than counting votes, have often
regretted accepting that ruling as supinely as they did. 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. The purpose
of Section 3 was to stabilize the country after a civil war, not
to cause another one.

As it unfolds, the effort to disqualify Mr. Trump could make him
more popular than ever. As harsh experience since 2016 has
taught, legalistic maneuvers haven’t hurt him in the polls. And
Democrats do nothing to increase their popularity by setting out
to “save democracy” when it looks — if their legal basis for
proceeding is too flimsy — as if they are afraid of practicing
it. That the approval ratings of the Democratic standard-bearer,
Mr. Biden, have cratered as prosecutions of Mr. Trump and now
this Colorado ruling have accumulated indicates that trying
again is a mistake, both of principle and of strategy.

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Perhaps the worst outcome of all would be for the Supreme Court
to split on ideological lines, as it did in Bush v. Gore, hardly
its finest hour. Justices have fretted about the damage to their
“legitimacy” when their decisions look like political choices.
They often are, as so many recent cases have revealed, but when
the stakes are this high, the best political choice for the
justices is to avoid final judgment on contested matters of fact
and law and to let the people decide.

In the Nixon era, the justices were shrewd enough to stand
together in delivering their decision: It was handed down 8-0,
with one recusal. In our moment, the Supreme Court must do the
same.

This will require considerable diplomacy from Chief Justice John
Roberts, and it will define his stewardship as profoundly as
cases such as Dobbs v. Jackson Women’s Health Organization, in
which his effort to herd his colleagues into consensus failed.
In this situation, unlike that one, it will require him to
convince his liberal colleagues who might otherwise dissent. For
their part, they ought to be able to anticipate the high and
unpredictable costs of presuming that judges can save a nation
on the brink of breakdown.

The truth is that this country has to be allowed to save itself.
The Supreme Court must act, but only to place the burden on Mr.
Trump’s political opponents to make their case in the political
arena. Not just to criticize him for his turpitude, but to argue
that their own policies benefit the disaffected voters who side
with a charlatan again and again.

https://www.nytimes.com/2023/12/22/opinion/trump-colorado-ballot-
ban.html

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