The Supreme Court should resist taking the easy way out

In yet another almost unimaginable moment in America’s troubled recent history, the Colorado Supreme Court ruled on Tuesday that former Pres. Donald Trump is barred from being on the Republican primary ballot in that state. The court found that Trump engaged in insurrection and, as a result, is not eligible to again serve as president of the United States.

Trump has already indicated that he plans to appeal Colorado’s decision to disqualify him to the United States Supreme Court. When the court hears the case it will be presented with an opportunity to weigh in on the question of Donald Trump’s responsibility for the events of January 6, 2021 and whether the Constitution means what it says in Section 3 of the 14^th Amendment.

Not since the court put its thumb on the electoral scale in its 2000 Bush v Gore decision has there been a case that would do more to thrust the court into the raging fires of political controversy in this deeply divided nation. As he has on many other occasions, Chief Justice John Roberts may respond to that possibility by invoking so-called “judicial minimalism.” He may try to rally a majority of his colleagues to make a decision that avoids a definitive resolution of the Trump case on the merits. Following his lead, they may be tempted to find some narrow or technical ground on which to decide the appeal from the Colorado decision and avoid facing head-on this most divisive of cases and controversies.

They should resist the temptation. 

This country needs a clear resolution of the question of whether Donald Trump is indeed eligible to hold office under the Constitution. Without it, a shadow will continue to hang over the 2024 election. But such a decision would be a risky one for the court, whether it comes out for or against Trump. 

Before looking more at that risk, let me say a bit more about judicial minimalism.When Roberts was nominated, law Prof. Cass Sunstein dubbed hima conservative “minimalist” in contrast to what he called conservative “fundamentalism.” “Fundamentalist conservatives,” Sunstein argued, “do not believe in small steps. They think that in the last 50 years, constitutional law has gone badly, even wildly, wrong. They want to reorient it in major ways…. In many areas, … fundamentalists welcome a highly activist role for the federal courts….”

Judicial fundamentalists, like Justices Samuel Alito and Clarence Thomas, “hold their views in complete good faith. But it is impossible to ignore the fact that there is great overlap between their constitutional vision and the politics of the extreme right-wing of the Republican Party.”  

This might incline the conservative majority on the court to come down clearly on Trump’s side in the Colorado case.

In contrast, minimalists, Sunstein noted, “insist that social change should occur through the democratic process, not through the judiciary…. On principle, they prefer narrow decisions and small steps, nudges not earthquakes. When confronted by contentious issues, minimalists focus on details and particulars, and are prepared to rule in ways that run contrary to their politics.” 

Sunstein said at the time that Roberts prefers to avoid “sweeping pronouncements and bold strokes, and instead pays close attention to the legal material at hand.” Throughout his career on the bench, Roberts has been an institutionalist, eager, whenever possible, to decide cases on the narrowest possible grounds and to avoid, where possible, making decisions that would damage  the Supreme Court’s legitimacy.. 

A minimalist opinion in the Trump disqualification case might say that the case raises a non-justiciable political question, or focus on the fact that Congress has never passed implementation legislation for the disqualification provision of the 14^th Amendment and that without it Trump cannot be disqualified, or that the January 6 did not meet the legal standard for qualifying as an insurrection. 

This approach may be particularly tempting in a case that poses the kind of legitimacy risks that the Trump case poses for the high court. 

If it were to rule against Trump and say he cannot serve as president, his supporters would regard the court’s decision as the latest underhanded effort to derail his return to the White House. We get a glimpse of that reaction in the Trump campaign’s initial response to the Colorado Supreme Court decision.

"Unsurprisingly,” the campaign said, “the all-Democrat appointed Colorado Supreme Court has ruled against President Trump, supporting a Soros-funded, left-wing group’s scheme to interfere in an election on behalf of Crooked Joe Biden by removing President Trump’s name from the ballot and eliminating the rights of Colorado voters to vote for the candidate of their choice.”

“Democrat Party leaders,” the statement went on, “are in a state of paranoia over the growing, dominant lead President Trump has amassed in the polls. They have lost faith in the failed Biden presidency and are now doing everything they can to stop the American voters from throwing them out of office next November. The Colorado Supreme Court issued a completely flawed decision tonight…. We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these unAmerican lawsuits.”

Law professor and frequent Fox News contributor Jonathan Turley echoed that sentiment in an op-ed posted on The Messenger. “For many voters… the opinion will only reinforce Trump’s claims that Democrats are engaged in ‘lawfare’ to achieve in the courts but they cannot achieve in the polls. Because of that the opinion could not come at a worse moment. Trump is surging in the polls, and many Democrats are now openly saying they fear Pres. Biden is about to be beaten in 2024…. For those voters, the Colorado ruling looks like a case of Biden being on the ropes when the referee just called the bout in his favor.”

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“Even if as expected,” Turley observed, “these justices are reversed by the United States Supreme Court, many Americans will not forget what they will consider to be an effort to take away their vote.”

Ty Cobb, a former lawyer in the Trump Administration, said that the Colorado disqualification decision “vindicates” Trump’s “insistence that this is a political conspiracy to interfere with the election and that … he’s the target and people shouldn’t tolerate that in America.”

Even Republican presidential candidate, and vocal Trump critic, Chris Christie argues that the former president should not be “prevented from being President of the United States, by any court. I think he should be prevented from being the President of the United States by the voters of this country.”

On the other hand, if the court, led by the justices who Trump appointed, were to rule in his favor Democrats and never-Trumpers would go ballistic. They are already arguing that Justice Thomas should recuse himself from the case and would accuse the court of partisanship and betraying the rule of law.

Still, as divisive as a ruling on the merits may be, at the end of the day America needs the Supreme Court to say whether Donald Trump engaged in an insurrection — and if that disqualifies him from again serving as president.