Graeme Sloan/Sipa USA via AP Images
There’s a relatively easy way that the Republican justices on the Supreme Court can hope to survive their upcoming encounter with the vexing question of Donald Trump. They will soon have two cases before them, not one. The first will require them to rule on Trump’s claim that since he was then president, he’s immune from prosecution for his incitement of the January 6th riot. The second will require them to rule on whether he can be tossed off state ballots in consequence of his running afoul of the 14th Amendment, Section 3, of the Constitution.
The course of least resistance for the GOP Six is to split the difference: Rule that Trump has no immunity from Jack Smith’s charges; and rule that Trump cannot be stricken from state ballots. The first ruling will demonstrate the Court’s belief in the rule of law, much to Chief Justice John Roberts’s relief. The second will demonstrate to Trump and his base that the justices should not be cast into utter darkness.
The second—allowing Trump to stay in the race—will require some fancy footwork. Amendment 14, Section 3, says that no one can “hold any office … who having previously taken an oath … to support the Constitution of the United States … shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.” The way around this is to argue that Trump’s efforts to illegally reverse the outcome of the 2020 election, to call for and incite the attack on the Capitol, and to refuse for several hours to call it off don’t constitute an insurrection or rebellion. Then again, if the word “same” in “against the same” refers, as it literally seems to, to the Constitution, then it was clearly an insurrection, as it sought to supplant the Constitution’s clear language for selecting a president. (The language for selecting the president is as straightforward as the process itself is byzantine.)
Then there’s a further wrinkle. If the Court rules expeditiously that Trump is not immune from Smith’s charges, Trump may well have been convicted of attempting to violently reverse the outcome of the 2020 election by the time the Republican Convention rolls around in July. If Trump is found guilty, he will surely appeal, and that appeal will also surely be put before the Court on an urgent basis. And it’s more than an academic possibility that some states will only then move to toss Trump off their ballots, requiring the Court to revisit the constitutionality of a Trump second term yet again. That would make four times that the Court will have to rule on variations of U.S. v. Trump this year.
The key to those rulings will surely be the three justices whom Trump nominated. Voting to uphold Smith’s right to try Trump and, if needs be, convict him will serve as a demonstration that they don’t exempt their nominator from the law. Voting to let Trump run and, should the gods punish us, win will, well, significantly negate that demonstration. But in all of this, the other six justices will play an ancillary role. For political reasons that I would understand and not denigrate, I don’t think the three Democratic nominees would want to be the three votes for keeping Trump off the ballots if the six Republicans go the other way. I can’t imagine that Alito and Thomas would ever vote to keep Trump off the ballots, and Roberts would likely take his lead from the Trump-nominated three. It all really will be up to Gorsuch, Kavanaugh & Barrett, attorneys at law.
Precisely, and perhaps only, because Republican justices hold or affect an allegiance to originalism and literalism in constitutional questions, the question of Trump’s legal eligibility should plop the Republican justices into one helluva constitutional morass. The Republicans will likely emerge from that by giving Trump a pass, but at least by their own “follow the text” dogma, they’ll reek of double standards and bad faith.
