The Disqualification Scenario

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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