If Trump is disqualified, will mayhem ensue?
When talking with other law professors, I have almost uniformly been told that, to avoid chaos, the Supreme Court should overrule the decisions in Colorado and Maine that disqualify Donald Trump from being on the ballot. If by chaos people mean social unrest caused by Trump’s supporters, this is the worst possible reason for refusing to enforce a provision in the Constitution whose sole purpose is to prevent people bent on destroying our democracy from using governmental powers to achieve that goal. Better to confront traitorous malcontents while persons loyal to the Constitution hold office than when the malcontents do.
I also question the prediction that mayhem will erupt if the Supreme Court affirms the decisions. Although the Jan. 6 insurrection showed the world that many of Trump’s supporters are hooligans, it did not undermine the rule of law outside the Capitol. The riot also made a future uprising less likely because it enabled law enforcement agencies to identify and imprison many of Trump’s most violent supporters. Presumably, these agencies are better prepared to deal with Trumpian vigilantes now than they were three years ago.
Another sign that fears of unrest are overblown is the failure of the many legal proceedings against Trump to cause upheavals. Trump’s supporters have phoned in threats, sent vicious emails and taken other steps to intimidate judges and jurors. These illegal and reprehensible efforts have certainly inspired fears and warrant heightened security measures, but they don’t amount to chaos.
A civil war, which some of Trump’s backers have threatened, is almost absurdly unlikely. In the 1860s, southern states seceded because abolition posed a dire threat to their economies and their elites, whose wealth was concentrated in slaves. The only person Trump’s disqualification threatens with financial harm is Trump himself. It is ludicrous to think that states would go to war to save him from a self-inflicted injury.
Also making havoc unlikely is the fact that a decision affirming Trump’s disqualification would necessarily be bipartisan. At least two Republican-appointed justices will have to cross party lines. Are Trump’s supporters really going to revolt if the same justices who overturned Roe v. Wade agree that he is disqualified?
If the disqualification decisions stand, it is at least plausible that, while there will be protests, threats and lots of griping, many Republicans will forget about Trump and focus on finding a new standard-bearer. After all, the GOP will still want to win the presidency, retake the Senate, and hold onto its majority in the House.
The party’s leaders and billionaire funders will either support Nikki Haley (as the Koch political machine does) or convince others, like Sen. Ted Cruz or Gov. Greg Abbott, to enter the race. Sensing futility, many of Trump’s rank-and-file supporters will also move on. And when it becomes clear that Trump has no future in politics, the media’s interest in him will wane. He’ll keep screaming in all caps on Truth Social, but few people will care.
Other possibilities exist, of course. If the Supreme Court affirms the disqualification, red states may try to exclude President Joe Biden from their ballots or thumb their noses at the court and let Trump run anyway. These moves seem unlikely. No legal basis exists for keeping Biden off any state’s ballot, and by letting a disqualified Trump run, states would be tossing their electoral votes down the drain.
When thinking about the likely consequences of a decision affirming Trump’s disqualification, it is most important to remember the famous quip that “predictions are hard, especially about the future.” No one knows what will happen. Everyone should be as honest about this as progressive writer Eric Levitz was when he examined the issue in New York Magazine. Although Levitz fears that a such decision would invite “a right-wing populist backlash against the court’s authority,” he candidly admits that “the political consequences of the court’s decision are impossible to predict with certainty.” Like everyone else (including me), he is merely guessing. The justices don’t have crystal balls either, and they should not let vague fears or speculations drive their decisions.
Only one thing can be stated with confidence. If the Supreme Court affirms the decisions in Colorado and Maine, the justices will have done what they can to honor the Constitution and to preserve democracy and the rule of law. The decision will also show that at least some GOP-nominated justices think it more important to apply the law than to display party loyalty.
This last point deserves greater attention than it has received. Democrats hate the Supreme Court and have seriously entertained the idea of remaking it. For them, a decision neutering the 14th Amendment may be the final straw. If the court holds in favor of Trump and the Democrats still win control of the presidency and Congress, they will have a solid reason to act. A court whose members place party loyalty above the Constitution deserves to be overhauled. In their shoes, I’d have a comprehensive bill that includes mandatory recusal requirements, an enforceable ethics code and other reforms ready to file the day Congress convenes.
Charles Silver is a professor at the School of Law, University of Texas at Austin and an adjunct scholar at the Cato Institute.