The Colorado Supreme Court ruled Tuesday that Donald Trump is not eligible to appear on the state’s ballot. The logic of the decision is simple: Trump took an oath to uphold the U.S. constitution, only to foment an insurrection against the American constitutional order on January 6, 2021. The 14th Amendment of the constitution bars from public office anyone who has taken an oath “to support the Constitution of the United States,” then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
There are a few different arguments for why the court’s decision is wrong on the jurisprudential merits. One is that Trump has not actually been found guilty of insurrectionary crimes in a court of law and that it is therefore premature to bar him from the ballot in advance of such a conviction. Another holds that the 14th Amendment’s anti-insurrection provision was not meant to apply to the office of the presidency. A third posits that Trump’s activities on January 6 do not meet the definition of “insurrection” or “rebellion,” as understood by the amendment’s authors.
I’m not a lawyer and have no authority on questions of constitutional jurisprudence. It seems to me, though, that it would be odd if the 14th Amendment’s authors believed it was important to bar insurrectionists from every public office except the most powerful one. And in my estimation, Trump’s actions on January 6 clearly did, at the very least, give “aid or comfort” to insurrectionists.
And yet, precisely because it is extremely important to keep authoritarian insurrectionists out of power, I think the legal merits of the Colorado case matter less than its political consequences. If the Colorado Supreme Court’s decision will, in practice, fortify American democracy against the threat of backsliding, then it is good. If it actually increases that threat, then it is bad.
Of course, the political consequences of the court’s decision are impossible to predict with certainty. The best we can do is try to game out different scenarios and judge their relative plausibility.
In one theoretically possible scenario, the Colorado court’s ruling is upheld by the Supreme Court, Trump is thus disqualified from seeking the presidency, the GOP primary electorate takes this in stride and nominates Nikki Haley, and the unique threat that Trump poses to America’s democratic health is eliminated.
More plausibly, the court’s ruling could undermine Trump’s candidacy, even as the Supreme Court ultimately overturns it. In this scenario, by generating a Supreme Court showdown over Trump’s eligibility, the Colorado decision will serve to put the GOP candidate’s January 6 treachery back in the headlines. And since the American electorate has the working memory of a goldfish on edibles, such headlines are necessary to render Trump’s insurrectionary past electorally salient in 2024. Thus, by issuing its decision, the Colorado court marginally reduces the odds of an authoritarian winning the presidency, even though the Roberts Court is sure to overrule it.
Personally, though, I think the Colorado decision will, if anything, marginally increase the risk of Trump reentering the White House in 2025.
First, it seems wholly implausible to me that the Roberts Court will strip Trump from the ballot. As much as the conservative majority’s more staid members might wish to excise the billionaire interloper from their movement, the political costs of such a decision far outweigh any potential benefit to John Roberts & Co. After all, the justices jealously guard their institution’s political legitimacy. To disqualify the preferred presidential candidate of a plurality of Americans would invite a right-wing populist backlash against the court’s authority. It would also increase the personal security risks facing the justices themselves. And it would do this without directly advancing a single conservative ideological goal. Ultimately, Trump will either win in 2024 (in which case his candidacy will have proven good for the conservative movement) or he will lose (in which case he will no longer be the movement’s problem going forward). For the conservative justices, there is therefore little advantage in disqualifying him.
If the Colorado decision won’t actually keep Trump off the ballot, then the operative question is whether it will make American voters more or less likely to support him.
One of the bigger questions hanging over the 2024 race is whether Trump’s campaign would be able to survive a criminal conviction. Although it is far from certain that any of Trump’s impending trials will finish before Election Day, much less that they will deliver a conviction, it’s a distinct possibility. And current polling suggests that a conviction could prove fatal to Trump’s candidacy.
I’m not sure exactly how seriously we should take such survey data. The GOP would of course try to portray any conviction as the product of a Democratic conspiracy to avoid a free and fair election. And given Trump’s success in surviving other conventionally disqualifying disgraces, the Republican narrative might carry the day.
Unfortunately, I think the Colorado decision makes that outcome a bit more likely. By definition, swing voters are people who consider Donald Trump a reasonable choice for the position of U.S. president. It therefore seems all but certain that a court declaring Trump an illegitimate candidate will offend the common-sense intuitions of this small but decisive voting bloc. I suspect that such voters will take the court’s decision as an affront to their political freedom and that this will render them more sympathetic to the right’s broader narrative about Trump’s legal woes: Namely, that they reflect a Democratic conspiracy to keep Trump out of office by any means necessary.
This is all speculative, of course. But I think that (1) there is a zero percent chance that the Supreme Court upholds the Colorado decision, (2) the Colorado decision makes it a bit easier for the right to delegitimize the various prosecutions of Trump in the eyes of swing voters, and (3) therefore the decision has the effect of marginally increasing the probability that an insurrectionist takes the presidency in 2025, in defiance of the 14th Amendment’s spirit.
I’m also not certain that it would be a good thing if the Supreme Court did in fact disqualify Trump. Although the 14th Amendment case against him strikes me as strong, I don’t know that I trust the American judiciary with the authority to disqualify presidential candidates on anything but the most straightforward grounds. Enforcing age and nationality requirements does not require acts of interpretation nearly as debatable as those required to deem Trump ineligible for president under the 14th Amendment. I would rather let U.S. voters veto presidential candidates than have Samuel Alito and friends do so. Separately, I fear that Trump’s disqualification could undermine the federal government’s legitimacy and erode civil peace.
All else equal, it is bad for presidential candidates to have contempt for democracy and for state Supreme Court justices to make decisions on the basis of political judgements rather than legal ones. But I think what ultimately matters is the relative weight of disparate risks, not the true meaning of the 14th Amendment. The important thing here is not what’s fair but rather what works.
If a bear breaks into your house and starts destroying the place, you may have a right to scream and kick it. But that would be a bad idea unless it has the effect of getting the bear to leave, rather than that of getting it to attack you. Ultimately, any human conception of rights or fairness are immaterial in a confrontation with a bear. The sole imperative is figuring out how to get out of the encounter as unscathed as possible.
The American republic’s confrontation with Trumpism has the same basic dynamic. The Colorado Supreme Court may have solid grounds for disqualifying Trump, given his betrayal of the democratic order on January 6. But I really doubt that either the Roberts Court or the median U.S. voter cares about that. After all, if the latter viewed Trump’s actions on January 6 as disqualifying, they would not be considering supporting him in 2024. So the question is whether Colorado holding Trump accountable to the 14th Amendment will make it more or less likely that he will ultimately serve as president again. Reasonable people can disagree about that. But our focus should be on actually getting the bear out of our house, not on whether the relevant statutes give us the legal right to evict it.
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