The U.S. is no Longer a "Mature Democracy": Implications for Trump's Ballot Eligibility
Tomorrow the Supreme Court will hear oral argument in Trump v. Anderson, which presents the question whether the Colorado Supreme Court erred when it held that Section 3 of the 14th Amendment bars Donald Trump from eligibility for the Presidency (and thus the ballot for the Presidency) in virtue of having "engaged in insurrection or rebellion" in the leadup to and during the breach of the Capitol on January 6, 2021 after having taken the oath of office nearly four years earlier. In reality, the case presents numerous sub-questions. They include:
(1) In light of Congress's power (vested by the last sentence of Section 3 itself) to lift a Section 3 ineligibility, is disqualification from the ballot, as opposed to the Presidency itself, premature (as argued in this amicus brief)?
(2) Is the Presidency an "office ... under the United States?" (as contested by the merits briefs and numerous amici).
(3) Does the oath of office of the President, as set forth in Article II, Section 1, to "preserve, protect and defend the Constitution of the United States" count as an oath "to support the Constitution of the United States," as set forth in Section 3 of the 14th Amendment?
(4) Is Section 3 of the 14th Amendment self-executing or does it require implementing legislation from Congress?
(5) Did the events of January 6, 2021 constitute "insurrection or rebellion?"
(6) If so, did Trump's conduct amount to "engag[ing] in" that insurrection or rebellion?
(7) Did the Colorado Supreme Court, in ruling in advance on Trump's eligibility, usurp the role of the state legislature under Article II, Section 1 to "direct" the "manner" of selecting Presidential electors?
(8) How do the foregoing and other federal constitutional questions interact with state law governing who can appear on a ballot? That question in turn raises sub-questions, as discussed thoughtfully along with discussion of many of the other issues by Professor Marty Lederman in a multi-part series on Balkinization, which also includes helpful recent contributions from Professors Bruce Ackerman, Mark Graber, and Gerard Magliocca.
(9) Intertwined with some of the foregoing questions, does the case present a nonjusticiable political question?
(10) Looming over the entire case, would disqualification of the nearly sure-to-be nominee of one of the two major political parties deprive voters of their right to choose their preferred candidate and/or spark political violence?
Trump can win the case by winning on any one of the foregoing (or some other) questions. For the respondents to win, they need to win on all of them. As a legal analyst, I regard Trump's side of nearly all of the issues as extraordinarily weak, so I think there's good reason to conclude that he should lose the case overall. As a legal realist about the Supreme Court (though not as realist as my co-blogger Professor Segall is), I expect that the Court will rule for Trump. The availability of numerous options for doing so reinforces that expectation, even though most of the options are not very sound legally.
I hope I'm wrong in that prediction. Meanwhile, I also want to offer a suggestion that the inclination to keep the courts out of this issue that may be guiding some of the Justices is misguided here.
In his classic book on the uneasy place of judicial review in American democracy, The Least Dangerous Branch (at page 184), Alexander Bickel offered a view of the political question doctrine as a prudential tool to be wielded by federal courts to avoid too-contentious questions that, all things considered, should be left to the political process. He argued that judges should hesitate in the face of certain cases of enormous "momentousness" because "in a mature democracy" they appropriately experience an "inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from." (Bickel borrowed the phrase "in a mature democracy" from the appeals court decision that the Supreme Court reversed in Greene v. McElroy, but he was clearly making it his own.)
In the six-plus decades since the publication of the first edition of The Least Dangerous Branch, conservative jurists and scholars have from time to time praised Bickel's brief for judicial restraint but have more often honored it in the breach. Certainly the momentousness of, say, Bush v. Gore, did not lead the Court to stay its hand. And the Court's recent momentous rulings include not only decisions allowing political actors greater latitude (as when it overruled Roe) but even more decisions taking issues away from the political process (as with respect to affirmative action, guns, and state support for religion). The Supreme Court in the Rehnquist/Roberts era has not been a restrained Court in the Bickelian or any other sense.
Nonetheless, there will be a temptation for many of the Justices--including the Democratic appointees--to seize on one of the makeweight arguments in Trump v. Anderson as a basis for leaving the case to the political process. And under ordinary circumstances, that might indeed be sensible. But these are not ordinary circumstances because the United States is no longer a mature democracy--one in which voters and candidates accept that when you lose an election, you accept the result, regroup, and run a better race the next time. The U.S. is now, at best, a fragile democracy. That does not justify full-on rule by the judiciary, but it does imply that the prudential considerations Bickel thought so essential to the Court's agenda-setting function counsel against leaving to the political system the task of resisting a man and a movement who would deal the coup de grâce to American democracy.