Politics by Law

Colorado's Supreme Court kicks Trump off the ballot (WSJ). I wrote earlier forecasting constitutional crisis with  next election. Legal chaos is starting right on schedule. 

Summary: Both sides are casting their opponents as illegitimate. That justifies profound norm-breaking behavior.  Political battles are being fought in the courts, so control of the courts and the judicial system now becomes vital to political success. When you can't afford to lose an election you do anything to win. Scorched earth rules the day. 

This affair offers a catch-22 to the Supreme Court. As a partisan chess move, you can't help but admire it. The case is weak, as even the judges voting for it admit. The election is coming up fast. There are many pending state cases to keep Trump off the ballot. The Supreme Court surely does not want to see elections more and more decided by courts. This will likely force the Court to act.

Letting the ruling stand, and having Trump off the ballot in several states, will inflame Trump supporters, and bolster their view that the justice system is hijacked by Democrats.  If it is overturned, Democrats will quickly cast it as a  "pro-Trump" partisan move, and use it to inflame their campaign to de-legitimize the court. Among other consequences, that will embolden the increasing habit of simply ignoring Supreme Court decisions.  The brouhaha may also scare the court over the many election cases that are headed its way like an avalanche in the next year.  It is  devilishly clever. If it were not so utterly destructive. 

The WSJ on these points. 

The ruling ... placed the Supreme Court in a position it likely would have preferred to avoid: having to resolve unprecedented legal issues that also ignite strong political passions among the nation’s electorate. ...  

A central legal question:  

One point of deep disagreement was whether removing Trump from the ballot violated his due process rights, given that he hasn’t been convicted of a crime and the pending criminal charges against him aren’t for insurrection.

... One dissenting justice was particularly vehement in opposition, saying it violated bedrock American principles to remove Trump from the ballot in this fashion. 

“Even if we are convinced that a candidate committed horrible acts in the past—dare I say, engaged in insurrection—there must be procedural due process before we can declare that individual disqualified from holding public office,” Justice Carlos Samour Jr. wrote.

“I could see the Supreme Court worrying about that and saying if you’re going to disqualify someone you need to give them more of an opportunity to make their case because that’s such a momentous deprivation of liberty and rights,” said [David] Orentlicher, an elected Democrat...

Hypocrisy is hardly new in politics. But it is noteworthy that the party bleating most loudly about "threats to democracy" is so distrustful of democracy that it is waging legal battles to keep Mr. Trump from being democratically elected.  If it's so self-evident that Trump violated the Constitution and his oath of office, the correct remedy is to simply let voters not vote for him on that basis. The party supposedly of the little person does not trust that little person to make the most basic decisions.  

Pushing political battles into the judicial system really is a threat to democracy. In a lot of semi-autocratic countries, when someone loses an election, the winners  go after them on vague charges, impoverish them, family, and supporters, and often put them in jail if not worse. In response, people do everything in their power not to lose elections, no matter how many law and norms get broken along the way. The more political battles end up in court, the closer we come to that state. 

I repeat the warning from my last post. This is the tip of the iceberg. We have not just the 92 (is that the latest number?) charges against Trump. Redistricting will be a battleground. Campaign finance charges will be levied. Republicans are gearing up Hunter Biden charges. Every smudged postmark, every extended deadline will end up in court. The Supreme Court may end up making crucial decisions again. The losers will claim illegitimacy of both the winner and the process, and will spend the following 4 years in resistance. Stop now while you can. 

(I am moving to Substack. I will cross-post everything in both places until the bugs are worked out.) 

Update:

Thanks all for the thoughtful and mostly polite comments, on such a sensitive topic. 

I now think the Supreme Court should leave it alone. Let the election come, let Coloradans ponder their Supreme Court banning the candidate of one of our two parties from the ballot, and let Coloradan voters do something about it if they don't like that outcome. I come to this view from reading Nellie Bowles always fantastic and humorous commentary over at the Free Press: 

The only way to protect democracy is to end democracy: The Colorado Supreme Court decided this week that Trump is disqualified from holding the presidency and so cannot appear on the Republican primary ballot in the state. Meanwhile, California’s lieutenant governor ordered the state Supreme Court to “explore every legal option” to remove Trump from the ballot. In doing so, she said that the rules for the presidency are simple: “The constitution is clear: You must be 40 years old and not an insurrectionist.” Yet even there she is wrong: you only have to be 35. 

Anyway, for a long time the standard liberal take has been that Democracy Is Under Threat from Republicans. And Trump certainly tried schemes in Georgia and whatnot, like, the man gave it a shot. But I would say that banning the opposition party’s leading candidate. . . is pretty much the biggest threat to democracy you can do. It’s a classic one, really. Timeless. Oldie but Goodie. The American left was so committed to protecting democracy that they had to ban voting. 

All I’ll say is that once you ban the opposition party’s top candidate, you can no longer, in fact, say you’re for democracy at all. You can say you like other things: power, control, the end of voting, choosing the president you want, rule by technocratic elites chosen by SAT score, all of which I personally agree with. But you can’t say you like democracy per se.

So Colorado, listen, I dream every day of being a dictator. I would seize the local golf course and turn it into a park on day one; day two, expand Austin breakfast taco territory to the whole country; day three, invade Canada. Day four, we ban zoos. My fellow fascists, we’re on the same page. Let’s just drop the democracy stuff and call it what it is. 

But until courts pick candidates for Colorado Supreme Court, the voters of Colorado can choose if they want democracy.