From the Left



A Supreme Compromise

Susan Estrich on

If there was one lesson to be learned from Bush v. Gore, and its impact on the Supreme Court's credibility, it is that the court should not decide presidential elections. That job belongs to the people: in the case of Donald Trump, to voters and juries. What that means in practice is that the court needs to find a way to decide the two cases before it now to preserve the rights of voters to choose who to vote for, and of a jury to decide whether Donald Trump is guilty of conspiring to incite an insurrection. Democracy has to win out.

The path forward becomes straightforward. The court cannot allow the states the power to disqualify Trump from appearing on the ballot as the Republican nominee for president. We cannot have a result that allows the states to deny voters, and the Republican Party, the right to nominate the candidate they seem to be intent on choosing. The question in the Colorado case is not where the court will come out, but only how they will get there.

The most likely path is to emphasize the associational rights of voters and of the Republican Party. The First Amendment rights of voters are sacrosanct. And while political parties are nowhere mentioned in the Constitution, the caselaw around the presidential nominating process grants supremacy to the political parties, as against state legislatures, in structuring the rules. The parties control the delegate selection process and set the rules for selecting a nominee.

The way not to get there would be for the Supreme Court to take it upon itself to decide that Trump was not guilty of inciting an insurrection. To rely on that ground would be to usurp the role of the jury in the criminal trial that Trump should face sooner, not later. The Supreme Court has given Jack Smith only until Tuesday to respond to Trump's appeal of the unanimous D.C. Circuit opinion rejecting his outlandish claim to absolute immunity for crimes committed while he was president.

There is simply no reason for the Supreme Court to get involved in that case. No president has ever claimed a right to the kind of wholesale "get out of jail free" card that Trump is claiming as a former president. The decision of the D.C. Circuit is bulletproof. The Supreme Court has already rejected the opportunity to decide the case when it was Jack Smith who sought expedited review. Trump doesn't want expedited review. He is using the Supreme Court as a delaying tactic in a transparent effort to delay the trial that could sink his campaign. The polls make clear that as much as 70% of the electorate would consider a felony conviction to be disqualifying. So Trump wants the court to put the trial on hold, avoid the possibility of a speedy trial and get himself elected and then pardon himself. For the Supreme Court to play into that strategy would do as much damage to its credibility as a decision in Colorado's favor. It would upset the democratic apple cart and compromise the political process.


Ultimately, the law needs to make sense. What makes sense in this context is a resolution that supports the democratic process and preserves the credibility of the Supreme Court. A jury should decide if Donald Trump committed the crime of conspiring to incite an insurrection. It is Trump, not Jack Smith, who is trying to manipulate the process for political reasons to avoid the impact of a conviction on the electoral process. He should not get away with it. The court should act as decisively to reject Trump's transparent gamesmanship as it almost certainly will to deny Colorado's move to have the court decide the election by disqualifying Trump from the ballot.


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