Kick Him Off the Ballot

Trump’s Supreme Court Justices Must Kick Him Off the Ballot

It’s their only choice if they want to maintain their commitment to originalism.

Opinion by BRUCE ACKERMAN

As the Supreme Court weighs whether to disqualify Donald Trump from the 2024 elections, it should quickly become apparent to the justices that their own constitutional legitimacy, no less than Trump’s, hangs in the balance.

The Colorado Supreme Court based its decision to bar Trump from the ballot on a thoughtful and extensive review of the Reconstruction-era debates surrounding the Disqualification Clause of the 14th Amendment. The court found that Trump’s support of the Proud Boys, which played a key role in the Jan. 6 riot, represented a paradigm case of “insurrection” as it was originally understood at the time the amendment was enacted. What is more, the court’s historical assessment has gained near-universal support from leading originalist scholars and jurists.

In short: originalism, pure and simple, serves as the foundation for Trump’s exclusion from the race. This reality requires the Supreme Court to confront a fundamental dilemma and poses a huge test for Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Not only did the Trump-appointed justices proudly proclaim their adherence to “originalism” at their Senate confirmation hearings, but their commitment served as the basis for repudiating Roe v. Wade and the constitutional right to an abortion in Dobbs. After all, many Americans will ask, if “originalism” is compelling enough for the new majority to strip women of control over their bodies, why isn’t it compelling enough to strip Trump of control over the country?

Trump and his allies assume that his appointees will vote in whatever way is best for the former president. They argue that, for democracy’s sake, the court shouldn’t deny voters the chance to choose the frontrunner for the Republican presidential nomination. And they warn that a decision that takes him off the ballot could unleash violent civil breakdown.

But if the three Trump appointees stick to their originalist principles and vote to disqualify him from office, the justices would actually strengthen American democracy and might help ease the country’s sharp divides — while also bolstering a beleaguered Supreme Court.

Chief Justice John Roberts could play a central role here. Roberts has devoted his career as chief to an ongoing effort to preserve the court’s role as a forum for thoughtful constitutional debate and principled decision.

Roberts is also perfectly aware that the Dobbs decision has dealt a body blow to this traditional understanding of the Supreme Court. Yet public alienation will escalate further if Barrett, Gorsuch and Kavanaugh join Justices Samuel Alito and Clarence Thomas in overruling Colorado’s decision amid blistering dissents by Justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor. In contrast, if Roberts can convince even one Trump appointee to remain faithful to his or her professed originalist principles and join him and the liberal wing, the court would be in a position to issue a bipartisan opinion that Trump did indeed join an “insurrection” on Jan. 6.

By affirming the Colorado decision, the Trump-appointed justices would make it clear that they are not merely rubber-stamps for the president who propelled them through the Senate — and that, despite prevailing public skepticism about the court, they are reaching out to their fellow justices in an on-going effort to decide hard cases on the basis of fundamental principles.

Of course, Trump himself would react with outrage. He has already warned in a filing to the Supreme Court that the efforts to disqualify him threaten “to unleash chaos and bedlam” around the country. Yet his ultimate response may be tempered by the criminal trials he will be confronting over the coming months. Prosecutors and judges will not respond kindly to incendiary calls to allies like the Proud Boys to engage in violent protest. Nevertheless, so long as he remains relatively calm, he will still have many chances to speak to a larger public, and what he says will have a big impact on the presidential campaign.

He has two choices if the Supreme Court prohibits his candidacy. On the one hand, he can call on his followers to boycott the polls, since they can no longer cast their ballots for their hero. On the other hand, he can make a deal with a particular Republican candidate and support their election as the second-best way to Make America Great Again.

In either case, his position will have counterintuitive consequences. Although true believers will heed his call for a boycott, this will greatly increase the vote share of moderate Republicans showing up at the primaries — and help a mainstream GOP candidate gain the party’s nomination. In contrast, if Trump designates a proxy, his candidate may well gain the party’s nomination, but struggle to win the general election if they hold fast to the MAGA-line — since the Republicans must gain the support of centrist voters in swing states to win.

However, there would be an even more significant consequence of the Supreme Court’s vindication of the Disqualification Clause: its impact on Joe Biden. Though he tried to walk the comment back, few were shocked when Biden acknowledged last month, “If Trump wasn’t running, I’m not sure I’d be running.” As the president recognizes, he will be 86 by the end of his second term, even as he remains convinced he’s the Democratic Party’s best shot to defeat Trump.

But if the court remains faithful to the Constitution, Trump won’t be running. A much younger Republican candidate will take his place, which should lead Biden to reconsider his decision. A recent Gallup Poll reports that he entered the New Year with a 39 percent approval rating, lower than any modern president at this point in their first term — and that his age is one of the most important reasons he is suffering at the polls. Without Trump on the ballot, the president will be under intense pressure to leave the scene and open up the Democratic primary to younger candidates.

If he does so, the 2024 campaign will take a dramatically different turn. Voters won’t be hearing Biden and Trump make the same old attacks on one another. Democratic and Republican candidates will be looking to the future — and arguing for very different solutions to the very real problems the nation confronts at home and abroad.

To ensure this happens, the Supreme Court should take one final step to reset the campaign. The justices will be hearing the Colorado case on February 8th, but 15 states have currently scheduled their primaries for Super Tuesday, March 5th. By the end of that month, voters will have elected more than half of all delegates to the national conventions. They’ll have done so, however, with frontrunners who are no longer running. To allow new contenders from both parties to make their case to the voters, the justices should issue an injunction postponing Super Tuesday to early May — and provide potential candidates with a six-week opportunity to satisfy state ballot requirements.

The Republican convention meets in the middle of July and Democrats will gather for their convention in August. That means the states will still have two months to hold their primaries in May and June, and the candidates will have plenty of time to campaign beforehand.

As a consequence, voters will have a far more meaningful set of choices to consider when they cast their ballots. Moreover, once other candidates are formally nominated, they will have the opportunity to engage in a series of serious debates on the key issues rather than shunning the one-on-one encounters in Trumpish fashion.

In short, by affirming the Colorado decision, the Supreme Court will not only begin a long hard struggle to reconstruct its own shattered legitimacy, it will reinvigorate the democratic energies of the American people — and may enable their eventual choice as president to gain public and congressional support for a serious program of social and political reform. To be sure, these legislative initiatives will be vastly different depending on whether a Democrat or Republican enters the White House. But, in either case, the broad direction of change will be in the hands of the voters.

This is precisely what democracy is all about. In contrast, a democracy can’t possibly function if presidents use force to remain in power after they have lost elections. If the court turns its back on the Constitution and allows Trump to run, it won’t be furthering the cause of democracy by “letting the voters decide” his political fate, as many commentators have suggested. The justices would instead be propelling the United States in the direction of Latin America — where judicial passivity has, with tragic frequency, enabled presidents who lose elections to stage coup d’états.

This historical experience suggests that, even if Biden beats Trump in 2024, the Supreme Court’s failure to uphold the Constitution may well facilitate a vicious cycle that leads to the death of American democracy over the course of the 21st century. But should the justices stick to their principles, the court’s reputation — and American democracy — will get back on track.