Will the Supreme Court bend to political will in the Trump ballot case? 

There’s been much speculation by legal analysts and commentators about how the Supreme Court could find an “off ramp” to avoid deciding the upcoming Colorado disqualification case “on the merits” — that is, how the court might seek to avoid the issue presented by applying Section 3 of the 14^th Amendment to former President Trump’s participation in the events of Jan. 6, 2021, thereby disqualifying him from the 2024 presidential ballot. 

Let me challenge this conventional analysis and conventional wisdom, and make an unconventional argument: The Supreme Court should be looking for an “on ramp” in the case, to do the right and honorable thing for the Constitution and the country. 

We need to look beyond the usual thinking: that the six conservative justices on the court — three of whom owe their position to Trump — could not possibly countenance affirming the Colorado disqualification case. I’m not so sure. 

Current polling predicts an extremely tight presidential race, with Trump ahead nationally and in most of the critical half-dozen “swing” states that will determine the Electoral College outcome. Trump has made clear his disrespect for the fundamental tenets of our democratic republic and his plans to turn it upside down and inside out in a second term. We need to take seriously what he says he plans.  

The Colorado case of Trump v. Anderson, set for argument Feb. 8, will be the most important case the court considers this term — perhaps in the country’s history. The court’s decision may determine not just the outcome of the 2024 election but the future of American democracy. 

The justices of the Supreme Court know this. They know they will have no more consequential case in their time on the court. Let us give them due respect for their sense of responsibility to the country, and their apprehension of their place in history. They remember Bush v. Gore, which decided the 2000 presidential election. No justice can avoid considering how she or he will be remembered. 

In most cases, such grand considerations would not come up. In Trump v. Anderson, they are unavoidable. That should impel the court to rise to the occasion and stop looking for that “off ramp.”  

It’s clear that Chief Justice Roberts has been concerned about the reputation of the court and its seeming politicization. Other justices must wince at some of the criticism and would welcome relief. Each member of the court has to be serious about the rule of law. In several cases where the court has had Trump’s interests before them, they have ruled against him.  

The notion that Trump’s three nominees are so beholden to him as to rule in his favor is disrespectful to them and to their oath and obligations to the law. They, especially, should be offended by any such comments that they “owe” him.  

All this tells us that the court is — or should be — open to deciding the case on its merits, not on its politics. The majority of constitutional law experts, like retired U. S. Circuit Judge Michael Luttig and Professor Larry Tribe, see the application of Section 3 of the 14^th Amendment to disqualify Trump as clear— and so, it follows, the proper affirmation of the Colorado Supreme Court’s ruling. 

The oft-stated worry is that disqualification would be anti-democratic and incite unrest and perhaps violence. Many presume that worry will also weigh on the court. They argue that only defeating Trump at the polls will put an end to him. 

Trump has already shown us his disregard for the outcome of a free and fair election. So, I give minimum credence to that as the way to put an end to Trumpism. 

I have previously argued here that there are many provisions of the Constitution that are anti-democratic. We’re not accustomed to seeing our system that way, but those provisions are there and cannot be finessed out of fear of the consequences of following the law. Section 3 of the 14^th Amendment is one of those provisions. 

We’ve seen several occasions over the last year when protest from the Trump base was feared. The search at Mar-a-Lago; the indictments; his plea appearances in the criminal cases; his appearance in the New York civil cases. None of those occasions for protests amounted to much. 

Yes, his disqualification would be at another order of magnitude. But surveys indicate that a large share of the Trump base would desert him if he’s convicted of a crime. Would a ruling against him by the Republican-dominated Supreme Court not be entitled to respect by much or most of his base?   

I fear the country will not be rid of Trump, his anti-democratic politics, and his normalizing of dishonesty without the cathartic pronouncement by the highest court that he is, by law and conduct, disqualified from office. There’s enough time for the GOP to find a different candidate. If there are troubling consequences, even some violence, they are nothing compared to the violence a second Trump term will do to our democracy. 

David Skaggs is former six-term Democratic representative from Colorado. He is a lawyer and a graduate of Yale Law School.