A big deal is looming in the Supreme Court's Trump cases.


After oral arguments in the Supreme Court in Trump vs. Anderson, a big deal that appears to make practical sense as a compromise is beginning to emerge: The Supreme Court has unanimously, or nearly so, held that Colorado does not have the power to remove Donald Trump from the ballot, but in a separate case, it rejects his immunity argument and moves Trump to trial this spring or summer on federal election sabotage charges. depending upon How As the court writes its opinion, however, it could leave the door open to chaos in January if Donald Trump appears to win the 2024 election and the Democratic Congress rejects the Electoral College votes for him on the grounds that he is ineligible. . However, Justice Ketanji Brown Jackson may have seen this danger and found a way around it. If the Court is going to side with Trump in the disqualification case, it should adopt Justice Jackson’s reasoning, even if it is not the best argument legally.

Since the Colorado Supreme Court removed Trump from the ballot based on his involvement in the insurrection, thereby disqualifying him under Section 3 of the 14th Amendment,. The amendment’s closest observers of the U.S. Supreme Court were expecting a reversal; the idea that a single state could remove a major presidential candidate from the ballot seemed both politically dangerous and a bad political precedent.

It was clear from Tuesday’s oral arguments that several justices shared that view. Chief Justice John Roberts was particularly concerned about a race to the bottom in which Republican states try to remove Joe Biden from the ballot, and it becomes a kind of free-for-all. The more liberal Justice Elena Kagan expressed similar views about the unique federal interest in not leaving it up to the states. Justice Amy Coney Barrett characterized the “first mover” problem, in which whichever state disqualifies first would make factual findings that would be binding on the nation. In fact, listening carefully to the questioning, I counted only one judge, Sonia Sotomayor, who could be persuaded to affirm Colorado’s disqualification decision. Expect a unanimous or near-unanimous opinion for Trump.

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Concerns about states going their own way in presidential elections and creating inequity are justified, and a ruling that prohibits states from removing presidential candidates for political reasons makes practical sense. And there’s a degree of good luck in the fact that, as of Monday, Donald Trump will have to return to the Supreme Court for an emergency motion on his claim of immunity to avoid being prosecuted for election sabotage. Trump’s immunity arguments are exceptionally weak, as confirmed by a unanimous decision by a bipartisan panel of DC Circuit judges this week. How reinstating Trump on the ballot in Colorado could be a great Kumbaya moment for the Supreme Court And he is scheduled to be tried in Washington this spring on charges of election sabotage. Together, these decisions let voters decide whether Trump is truly unfit to serve as president.

And yet, the justification for putting Trump on the ballot that seemed to match Thursday’s oral argument could open the door to something politically dangerous in the future. Suppose the Supreme Court holds that the unique federal interest in the presidential election (or all federal elections) means that states cannot use disqualification under 14. There is perhaps some congressional authority absent from the amendment to remove a candidate from the ballot. Such a decision would still allow Congress, our national institution, to disqualify Trump.

And such Congress disqualification cannot come after the first elections; rather, it must come after this. As I did not support either side in the Supreme Court amicus brief I filed with Professor Edward Foley and GOP attorney Ben Ginsburg, if the Court issues a ruling on the question of Trump’s disqualification, there would be a risk of disenfranchisement, and there is a great danger of anarchy. And leaves the question to Congress. If Trump appears to win the election in November and Democrats control Congress, there will be serious efforts to disqualify Trump when the Electoral College votes are counted in January, leading to political instability and even violence. There will also be danger. Kicking the can down the road like this is dangerous.

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And perhaps that is why Justice Kentonji Brown Jackson seemed to accept what I consider to be a weak textual argument that section 3 of 14th The amendment does not apply to the post of president. He noted that the President is not explicitly named as one of the offices to which disqualification applies in the amendment and said that history has shown that the purpose of the amendment was actually what happened in the Southern states after the Civil War. was going on, where local officials were more likely to be Confederate. This argument is weak because it would be an absurd rule to disqualify rebels from serving in every office in the country except that of Commander in Chief, a point that Trump’s lawyer Jonathan Mitchell also acknowledged at the oral argument. It is also weak as a textual matter because the disqualification provision applies to “offices” of the United States, which should include the presidency.

And yet, Justice Jackson’s approach has great practical appeal. A ruling along the lines of Justice Jackson would hold that disqualification does not apply to the presidency at all, making it highly unlikely that congressional Democrats would choose not to count any Electoral College votes cast for Trump in November. Will try.

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Will the Court write an opinion that, at least in part, relies on some shaky logic to reach an outcome that almost certainly resolves the election in a way that the justices feel is most politically correct? Is it appropriate? Yes, we’ve seen this move before, where the court adopted a new and controversial equal protection argument. Look bush vs gore, Heck, the judge in the disqualification case could even incorporate Roberts’s “race to the bottom” argument, so that the opinion would have a more persuasive argument to reach the conclusion that Trump should remain on the ballot. It’s like three conservatives bush vs gore The majority supported George W. Bush in the 2000 election. It also adopted an alternative argument to side with Bush, an argument that was accepted by the Supreme Court last year.

The bottom line is whether and how the court rules for Trump in the disqualification case, and as it considers sending him to trial for election sabotage, it needs to keep an eye on what happens if Trump appears to win. So what is going to happen in January? If there is going to be a big deal, the Court should not forget what Congress can do.


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