Thursday, February 01, 2024

The politics of disqualification

Mark Graber

A Supreme Court deciding on political grounds alone would be at least as inclined to disqualify former President Donald Trump as allow him to remain on the ballot in all fifty states.  A judicial decision declaring Trump ineligible for present and future offices in the United States because he engaged in an insurrection after taking an oath of office might strengthen the Roberts Court’s appearance of bipartisanship, weaken opposition to courts among Democrats, enable the Republican Party to nominate a candidate with more appeal to independents, forestall violence, and rid American politics of a particularly despicable figure.  Marty Lederman has ably described the political reasons why the Supreme Court might want to avoid disqualification.  The following sets out the at very least equally compelling political reasons that might encourage the court to disqualify Trump.  The precise weight of these reasons and the extent to which the Court will rely on more political than legal reasons, of course, are anyone’s guess.

Disqualifying Donald Trump would be a coup for the Chief Justice’s public relations campaign.  What better way to prove that there are no Trump justices or Obama/Biden justices then for the court to disqualify the former forty-fifth president.  By invoking Section Three against Donald Trump, Justices Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett would silence forever claims that they are tools of the president who appointed them.  The justices would demonstrate that originalism and textualism are neutral principles of law and not vehicles for imparting partisan preferences by interpreting Section Three consistently with the meaning of “engage in insurrection” in 1866 and booting Donald Trump out of the presidential campaign. Political science textbooks would have to be rewritten while law professors jeered at social scientists who did not understand the rule of law.   

Disqualifying Donald Trump would boost support for the court among the constituencies most likely to interfere with judicial independence in the near future.  Center-left Democrats angry with judicial rulings in abortion, affirmative action, administration agency, religion and other cases would be mollified to some degree by a judicial ruling disqualifying Donald Trump.  The new narrative would be that while this court leans to the right, the judicial majority will vote against Republicans when text and law is clear.  Law matters, which is all one can ask of a court.  Of course, many (hardly all) Republicans will be upset if Trump is disqualified.  Still, no Republican with any sense in Congress is going to move to weaken a court that has done more than any institution in the past twenty years to advance a conservative constitutional agenda.  Is Ted Cruz really going to impeach John Roberts while Biden is president?  Getting rid of Donald Trump is a small price to pay for the weakening of the administrative state, increased religious access to governing largess, greater rights to discriminate against persons of color and sexual minorities, and other Republican agenda items.

Disqualifying Donald Trump would come at very little costs for Republicans.  Many polls show Governor Nikki Haley running as well if not better against President Joseph Biden than Trump.  Many Trump voters have indicated they will abandon the former president if he is convicted in one of his many criminal trials.  Haley does not present that risk.  Republicans who want Republican policies should cheer any move that gets the political incompetent Trump off the ballot. President Haley is likely better able than President Trump to achieve conservative goals, given that her administration is unlikely to be described as malevolence tempered by incompetence. 

Republicans will have an incentive to clamp down on violence if Trump is disqualified in March 2024 rather than in the fall.  Haley and others have substantial incentives to prevent Republican violence should Trump be disqualified in the near future.  They need the independent voters turned off by violent protestors in the streets.  Those incentives are substantially less the later in the election season Trump is disqualified. 

Finally, Republican judges may feel Trump is a despicable character who should be disqualified given any excuse.  Can you blame them?

How the court will balance the political and legal factors is anyone’s guess, particularly because most political factors are a guess.  Lawrence Baum offered a powerful insight when he pointed out that Supreme Court justices are unlikely to predict the future consequences of their decisions.  For this reason, he suggested, justices are best off making the decision they think legally best and hope for the best.  And the decision that is legally best, an increasing number of informed constitutional thinkers are coming to understand, is one that disqualifies Donald Trump.

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