Supreme Court might actually rule against Trump.

A contrarian’s guide to the Trump ballot case

Three heterodox reasons why the Supreme Court might actually rule against Trump.

JAMES ROMOSER

The conventional wisdom is that the challenge to Donald Trump’s eligibility is dead on arrival at the Supreme Court. However strong the challenge might be in a vacuum — and scholars on both the left and the right say the legal arguments are potent — there’s no way the conservative-dominated court will kick Trump off the ballot as he’s cruising to the nomination, right?

Don’t be so certain. Here are three contrarian theories for why Trump could actually lose this case — for reasons that have little to do with the law:

The reputation-management theory. The court is battling corruption accusations, and its approval rating has nosedived. A predictable ruling in Trump’s favor, divided along partisan lines in the style of Bush v. Gore, would sink the court’s legitimacy even further — and Chief Justice John Roberts knows it. But a stunning declaration from a majority of justices that Trump can never hold office again? That might just rehabilitate the Roberts court in the court of history — at least for Trump's opponents.

“They must know this will be one of those big cases that is read and taught for years,” said Ciara Torres-Spelliscy, a professor at Stetson University College of Law.

The power-consolidation theory. Even as public confidence has dwindled, the court has systematically concentrated its own power in recent years. In a string of decisions, it has stripped power from both Congress and the executive branch, leaving the court itself as the decisive voice on huge swaths of public policy.

“The one common denominator of the Roberts court is taking power for itself,” said Eric Segall, a professor at Georgia State University College of Law.

It’s hard to imagine a more aggressive assertion of judicial dominance than a decision kicking a leading presidential candidate off the ballot. And it would be a way for the conservative justices — including Trump’s three appointees — to prove that they are not the pawns Trump would like them to be.

The theory of the political long game. If you think the six conservative justices are merely Republicans in robes, you might think a Trump victory is assured. But the political undercurrents could be more complicated.

Culturally and intellectually, most of the conservative justices have more in common with Reagan- and Bush-era Republicans than with the MAGA movement. And Trump has arguably hurt the Republican Party in three straight elections: the 2018 midterms, the 2020 general and the 2022 midterms.

Disqualifying Trump from the ballot would not hand the election to Joe Biden. It would simply allow some other Republican to run — perhaps a more establishment Republican with a better chance to beat Biden.

“If you really put Brett Kavanaugh on truth serum, would he rather live in a world where Nikki Haley is the president?” said Kent Greenfield, a law professor at Boston College. “I think he would pick Nikki Haley.”

No one suggests that any justice will explicitly approach the case so cynically. But in such a politically fraught case, it is impossible to disentangle the abstract legal questions from the campaign consequences.