The Disqualification Scenario

Let’s pretend.

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Woman holds a sign as the Supreme Court hears arguments on whether the state of Colorado can keep former President Donald Trump off the 2024 presidential ballot on February 8, 2024. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

The fecklessness and civic corruption of congressional Republicans is an almost inexhaustible topic. But after writing about it for three straight days, I confess to a degree of exhaustion.

So let’s keep it light and breezy today by imagining that the Supreme Court disqualifies Donald Trump from being president again.

Earlier today, the court heard arguments on whether Section 3 of the 14th Amendment bars Trump from office due to his insurrectionary behavior on January 6. Many brilliant and learned legal minds, including our own Sarah Isgur, have weighed the constitutional merits of the case and ended up on opposite sides. Court challenges to Trump’s eligibility have succeeded in two states and been dismissed in several others. It’s a matter of fascinating academic debate.

And it’s all noise. Trump will not be disqualified. What I wrote in December is truer today following his victories in Iowa and New Hampshire: The Supreme Court won’t trigger the gravest crisis of government legitimacy since the Civil War by kicking the presumptive Republican nominee off the ballot nine months before Election Day.

Whether it should makes for a fine watercooler conversation in the local law school faculty lounge. Whether it’s ever proper for a court to let political considerations influence its jurisprudence is heady stuff for a colloquy among legal theorists. But the result of the case is not in doubt. Trump will win, probably with at least one vote in his favor from the liberal justices. Any suspense about the outcome has to do with how close to a 9-0 ruling John Roberts can get.

Which is a bummer, and for more than one reason. There’s no news development less inspiring for a pundit to write about than “Status quo prevails.”

Let’s pretend, then. Let’s imagine that, against all odds, five votes materialize on the court for disqualifying Trump. The three liberals somehow persuade Brett Kavanaugh and Amy Coney Barrett to pull the plug on the man who appointed them. (Normally Roberts would be the first target for a crossover vote, but the chief is famously an institutionalist. He won’t compromise public respect for his court by moving to oust Trump.) Americans wake up one day this spring to find that the odds-on favorite to become the next president has been excommunicated from politics. What happens then?

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  1. Matsson

    Nick, I only comment when you let me down. You bookended this column with "this scenario of Trump getting kicked off the ballot will never happen", then write endless doom-and-gloom scenarios as if it will. Maybe you should have kept it up your sleeve if that day ever comes? This column is just a fever-dream exercise.

    Second, I love how you write about Trump and populism-- I'm not going to call you a "TDS-er"-- as the change of the Republican party into an authoritarian-loving cult who thinks "we need to give Putin an off-ramp" and Tucker Carlson is a "journalist" is one that needs to be chronicled. But it's not like Biden and the DNC are holy saints of sanity, either. They knew he was mentally impaired in 2016 and terribly so now, but are asking us to "vote Biden". But a vote for Biden is a vote for... who? Assistants? Aides? Note I'm not going into conspiracy theories, but NO ONE really knows who runs the WH, and they can't even keep track of their Sec of Def during two wars. It's offensive to ask the American public to vote for Biden when it's really a vote for nameless people behind a curtain. You CAN criticize him/DNC once in a while when you need a Trump break.

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  2. FreddySez

    If only I could email this column back through time for Mitch McConnell to read in early February 2021.

    Of all the "s/he could have stopped this" counterfactuals you can come up with, his is the clearest.

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  3. Brian.Klotz

    #democratsforhaley

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    Mister D

    By and large I think The Dispatch team, while critical of Trump, manage to avoid steering into full blown Anti-Trump Derangement Syndrome. You, however, seem to come closest to the edge of that precipice. I agree, it won't happen, but its "fun" to ponder the possibility.

    I do want to single out one point I believe to be incorrect: Because John Roberts is an institutionalist who wants to protect the court, he will never join the losing decision here. In the scenario above, he would join the 5-3 majority (making it 6-3) and almost certainly choose to write the opinion himself to make it as narrow as possible. The real conundrum is what he would do in the event that it is a 4-4 tie prior to his vote?

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    Bill Nelson

    That was fun to write, though it was a tad long. Essentially, it could have been “Trump removed and goes whacko, Trump supporters walk past like passing a misbehaving child in the store.”
    I don’t believe that Trump commands the type of response that would be all that serious.

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    1. Val Xavier

      Given the circumstances, that thanks to gross incompetence at all levels of our government, including its citizenry, he could very well be elected President in November - I think it commands all seriousness.

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  6. Francislyo

    I don’t get it, Nick – if you really think the Republican party is as morally bankrupt as you say, why do you want to ignore text and history, which the conservatives on SCOTUS say is the lens for constitutional decisions? Do you actually want them gut the 14th amendment sec 3 and set a precedent that POTUS can break his oath of office in the many ways Trump has done and promises to do again?

    Do you know that this cycle Trump did Not sign the Illinois loyalty pledge attesting “I do not directly or indirectly teach or advocate the overthrow of the government of the United States or of this state or any unlawful change in the form of the governments thereof by force or any unlawful means.” You seem to advocate that we break the text and history lens, even though you believe this man will be back in power – all because we need to cave to MAGA violence!

    Wrong is Wrong. Where would we be today if America and caved on slavery to avoid the civil war? Too horrible to contemplate, but maybe we should. And isn’t caving to MAGA terrorism how the Republican party lost its soul? Don’t you care about our nation’s soul?

    No, Nick, you need to consider (and possibly publish) the other scenario, if SCOTUS goes down the path you advocate. You may want to run it by someone in a different media silo as you contemplate the horrible ramifications.

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    1. Slowdave1

      He didn't advocate. He stated what is, in his opinion, a foregone conclusion. I didn't read that he was happy about it.

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  7. Kevin M

    What would happen differently if Trump runs and loses, by whatever margin? Do you think that he'll go off to the Supermax quietly?

    Everything that you said about a disqualified Trump holds for a crookedly defeated Trump (and all defeats would be "crooked"). Worse, he'd be in a hurry to get his retribution and his cult will be at peak anger.

    Throughout this adventure, starting in 2015, the entire opposition to Trump has cautioned patience, hoping that time would solve the problem. It hasn't. It's a toxic relationship whose toxicity increases monotonically.

    You counsel appeasement. Again.

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  8. Nick Pellicciotto

    Is this a short story? Cool that the Dispatch has expanded into fiction.

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    Rdpulfer

    "So let’s keep it light and breezy today..."

    Nick, I think your optimism needs work...

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  10. Mattfrommo

    One of the unfortunate realities of human virtue vs. human vice is a problem of scope. It takes millions of people acting virtuously to advance the ball a few yards at a time. It only takes a couple hundred knuckleheads to bring chaos, at least for a little while. I don't really think that very many people would resort to violence or destruction if Trump were removed. (all told, I think most of us are just trying to live our lives and are basically exhausted at the whole thing). Problem is, there are probably a dozen or more motivated people in every town who would do whatever Trump tells them to do. A dozen motivated people can cause an awful lot of havoc.

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