9-0

The Supreme Court stands for democracy -- this time

Like my friend and colleague Damon Linker, I am gratified that the Supreme Court unanimously decided that Colorado cannot remove former president Donald Trump from that state’s primary ballot under Section 3 of the 14th Amendment to the Constitution. As Linker says, the action by Colorado expanded an already yawning legitimacy crisis, and the most effective way to respond would be for the Supreme Court to unanimously overrule, which they did. Good.

A 5-4 majority also ruled that only Congress can, by enforcement legislation, lay the groundwork for any other body, such as a state court, to apply that bit of the Constitution to an individual running for office. The three liberal Justices and Justice Amy Coney Barrett thought that was going too far since the case before them did not require to Court to opine on the matter. I’ve of two minds about that. On the one hand, I’m an advocate for writing opinions as narrowly as is practical because I think the Court should be humble and restrained. I don’t like the Court speaking ex-cathedra on matters that are not before it, and I particularly don’t like a 5-4 decision on a matter so sensitive. If ever the Court needed to speak with one voice, this was the time.

On the other hand, though, I do not think it would be edifying to see additional lawsuits in federal courts—or efforts by state legislatures—to find wiggle room for further disqualification efforts in a narrowly-tailored ruling. Sometimes, we need to know what the law is. More importantly, the fundamental principle at issue here was one of democratic legitimacy, so I see some value in the Court explicitly pointing to the democratically-accountable national legislature as the only proper venue for legitimating the effort to remove someone from the ballot box for insurrection. In my commentary on the subject, in The New York Times and on this Substack here and here, I’ve kept my eye firmly on that principle, and it’s hard for me not to be pleased to see it vindicated.

Now let’s see if the Court is willing to apply that principle in other areas. I’m not holding my breath.

Because here’s the thing. I believe this decision was right on the merits, and I also think it was extremely valuable to get unanimity because that should make it clear to everyone—including those who thundered about the obviousness of Trump’s ineligibility because of his actions on January 6th, 2021—that this view was not obvious, and that its lack of obviousness is precisely why it requires democratic legitimacy to back it up. This Court, which has been eager to turn the state of the law to the right across the board, in ways that, to my eye, manifestly lack philosophical consistency, needs to start taking that lesson about democratic legitimacy to heart across the board instead, particularly in areas where democratic accountability is being or may be impaired by state actors who have skin in the game. The legal issues are different, but the philosophical issues are fundamentally the same—and so is the legitimacy crisis. So: are the Court’s conservatives willing to seek common ground with at least some of its liberals, and get to rulings that will be more widely respected? Or will they stick with trying to build the largest conservative majority possible, no matter what that does to the Court’s own legitimacy or to the health of American democracy?

For liberals, meanwhile, it’s lost past time for them to get through their heads that they cannot favor a powerful, activist Court and also decry as illegitimate any decision by that Court that goes against them. The sword of power is double-edged and always will be. The refusal to see that fact has always been the manifest contradiction at the heart of liberal court-packing fantasies, which imagine that you could destroy the legitimacy of an institution and then still use it to reshape the law and society for their own ideological purposes. Enthusiasm for disqualifying Trump from the ballot was cut from the same cloth, and there was no way it was ever going to fit.

Now we can all get back to the election which, because we are a democracy, will establish who wields that sword and which way it will swing, at least for a term of time. Let’s see if liberals, who have expressed so much understandable fear at the possibility of Trump’s return to office, will do whatever the must to actually beat him, now that they know the ballot box is the only place that they can do it.