I think this rests on an incomplete account of the benefits of democracy. Increasing the likelihood that contending factions will opt to settle their differences peaceably is one major benefit-- and seems (correct me if I am misinterpreting) to be at the heart of what you call legitimacy. As you say, court decisions can undermine that if they frustrate elected officials' will in too obvious, biased, inconsistent etc a manner.
But democracy also has at least two other key benefits: it makes it easier to remove very bad leaders, and it enforces at least a very rough political equality, without legally privileged aristocrats or legally disfavored second class citizens. Good democratic jurisprudence should serve these goals as well, and the most difficult cases are those where they are in tension with promoting legitimacy.
Both the Colorado and Israeli cases seem to me to fall in that category. Candidates and governments with explicitly anti-political-egalitarian platforms and behaviors, and histories of egregiously lawless and destructive behavior, are threats to the key benefits of democracy even if they are popular enough, or their supporters militant enough, that disqualifying them or declaring their policies unconstitutional creates legitimacy risk. So at some margin it is worth it, as a democracy-upholding measure, to take some legitimacy risk to tell them No; and the case for disqualifying Trump and frustrating Netanyahu is precisely that that tradeoff is worth it. I am not saying it's easy to weigh those considerations against each other, but I think you have to do so to make a strong argument for or against the democratic desirability of either decision.
Noah's two posts are the best defenses of the position that the Supreme Court ought not disqualify Trump that I have read, and I've been looking.
I agree with him in principle, part of the job of the Court is to maintain legitimacy.
Noah finds it obvious that disqualifying Trump will most undermine the legitimacy of the Court and the best decision is a unanimous decision the best case is a unanimous decision. Yes on unanimity, but it is unlikely. Noah suggests some horse-trading, some follow-on overturnings that also increase legitimacy and small-d democracy. Qualifying Trump followed by overturning Citizen's United, Rucho, and Shelby County over the next few years would be awesome. It's also fantasy fiction. I'll stick to likely outcomes.
Why is disqualification a greater blow to legitimacy than qualification? "every action has an equal opposite reaction" Noah writes. Yes, it does. We are in a position where either ruling will be widely considered illegitimate.
A likely path to a Trump victory is an Electoral College win and popular vote loss, like 2016. A partisan Supreme Court ignores Trump's bad acts, ignores the very defensible Section 3 of the 14th Amendment, and a failed part the of the constitution with ugly roots is slavishly observed. Trump does what he says he will do, dictator on day 1. Section 3 of the 14th amendment is rendered a dead letter, joining impeachment as a constitutional failure.
Or the Supreme Court disqualifies Trump, necessarily a bi-partisan ruling. By all indications Biden is a weak incumbent and Nikki Haley is elected, probably with a popular vote majority.
Considering scenarios how is it "obvious" disqualification damages legitimacy less? Really, I am interested in thoughts here because I just am not seeing it.
It is relevant that disqualification crushes legitimacy among those who believe Biden stole the election. How much legitimacy remains to be lost? Qualification will crush the legitimacy of the Court among people who still believe what we have is worth conserving.
Finally, numbers. People will differ, but I think fewer people will be enraged by disqualification. The enraged MAGA base is maybe 1/3 of the population. Non-MAGA Republicans get a win, Nikki Haley. Democrats will accept a loss in a fair fight.
Great post, and I don't even agree with the conclusion. Noah mentions Damon Linker, the two have similar positions, but Linker calls the Colorado Court "breathtakingly foolish" where Noah is generous: they were simply applying the law as they understood it.
Noah defends protecting legitimacy as a valid goal in the Supreme Court, he says they cannot limit themselves to formal legal analysis, I agree with that too, but the argument must include the caveat that protecting legitimacy is not part of the job of mid-level courts. The high Court steers the ship, if all courts try to set the course you will get chaos.
One question that is perhaps beyond the scope of this post but deeply important to resolving the issues it raises: is it even possible to have a democratic political system on top of an inherently and extraordinarily unequal socioeconomic system?
Aargh. I think this is excellent, Noah, but I also think that it's wrong in some ways that I really want to respond to. Let me see if I can find the time.
I think this rests on an incomplete account of the benefits of democracy. Increasing the likelihood that contending factions will opt to settle their differences peaceably is one major benefit-- and seems (correct me if I am misinterpreting) to be at the heart of what you call legitimacy. As you say, court decisions can undermine that if they frustrate elected officials' will in too obvious, biased, inconsistent etc a manner.
But democracy also has at least two other key benefits: it makes it easier to remove very bad leaders, and it enforces at least a very rough political equality, without legally privileged aristocrats or legally disfavored second class citizens. Good democratic jurisprudence should serve these goals as well, and the most difficult cases are those where they are in tension with promoting legitimacy.
Both the Colorado and Israeli cases seem to me to fall in that category. Candidates and governments with explicitly anti-political-egalitarian platforms and behaviors, and histories of egregiously lawless and destructive behavior, are threats to the key benefits of democracy even if they are popular enough, or their supporters militant enough, that disqualifying them or declaring their policies unconstitutional creates legitimacy risk. So at some margin it is worth it, as a democracy-upholding measure, to take some legitimacy risk to tell them No; and the case for disqualifying Trump and frustrating Netanyahu is precisely that that tradeoff is worth it. I am not saying it's easy to weigh those considerations against each other, but I think you have to do so to make a strong argument for or against the democratic desirability of either decision.
Noah's two posts are the best defenses of the position that the Supreme Court ought not disqualify Trump that I have read, and I've been looking.
I agree with him in principle, part of the job of the Court is to maintain legitimacy.
Noah finds it obvious that disqualifying Trump will most undermine the legitimacy of the Court and the best decision is a unanimous decision the best case is a unanimous decision. Yes on unanimity, but it is unlikely. Noah suggests some horse-trading, some follow-on overturnings that also increase legitimacy and small-d democracy. Qualifying Trump followed by overturning Citizen's United, Rucho, and Shelby County over the next few years would be awesome. It's also fantasy fiction. I'll stick to likely outcomes.
Why is disqualification a greater blow to legitimacy than qualification? "every action has an equal opposite reaction" Noah writes. Yes, it does. We are in a position where either ruling will be widely considered illegitimate.
A likely path to a Trump victory is an Electoral College win and popular vote loss, like 2016. A partisan Supreme Court ignores Trump's bad acts, ignores the very defensible Section 3 of the 14th Amendment, and a failed part the of the constitution with ugly roots is slavishly observed. Trump does what he says he will do, dictator on day 1. Section 3 of the 14th amendment is rendered a dead letter, joining impeachment as a constitutional failure.
Or the Supreme Court disqualifies Trump, necessarily a bi-partisan ruling. By all indications Biden is a weak incumbent and Nikki Haley is elected, probably with a popular vote majority.
Considering scenarios how is it "obvious" disqualification damages legitimacy less? Really, I am interested in thoughts here because I just am not seeing it.
It is relevant that disqualification crushes legitimacy among those who believe Biden stole the election. How much legitimacy remains to be lost? Qualification will crush the legitimacy of the Court among people who still believe what we have is worth conserving.
Finally, numbers. People will differ, but I think fewer people will be enraged by disqualification. The enraged MAGA base is maybe 1/3 of the population. Non-MAGA Republicans get a win, Nikki Haley. Democrats will accept a loss in a fair fight.
What am I not seeing?
Great post, and I don't even agree with the conclusion. Noah mentions Damon Linker, the two have similar positions, but Linker calls the Colorado Court "breathtakingly foolish" where Noah is generous: they were simply applying the law as they understood it.
Noah defends protecting legitimacy as a valid goal in the Supreme Court, he says they cannot limit themselves to formal legal analysis, I agree with that too, but the argument must include the caveat that protecting legitimacy is not part of the job of mid-level courts. The high Court steers the ship, if all courts try to set the course you will get chaos.
One question that is perhaps beyond the scope of this post but deeply important to resolving the issues it raises: is it even possible to have a democratic political system on top of an inherently and extraordinarily unequal socioeconomic system?
Aargh. I think this is excellent, Noah, but I also think that it's wrong in some ways that I really want to respond to. Let me see if I can find the time.