Booting Trump off the ballot isn't just legally correct — it's the smart move for the Supreme Court

This is one of those rare situations where what's good for the country is also good for the GOP

By Amanda Marcotte

Senior Writer

Published December 20, 2023 6:01AM (EST)

Donald Trump | Close-up of mail-in-ballots (Photo illustration by Salon/Getty Images)
Donald Trump | Close-up of mail-in-ballots (Photo illustration by Salon/Getty Images)

Let's just get this out the way up front: If Donald Trump is removed from enough state ballots that one of the also-rans vying for the Republican nomination gets to run for president instead, there's a risk that President Joe Biden loses in November. All of those never-Trumpers we thought were our buddies will abandon the #Resistance so fast it will make Democratic heads spin. And the MAGA types could be so angry about losing Dear Leader they will rush the polls to vote as hard against Biden as possible. 

Or maybe the opposite will happen: Trump will whine, cry and blame whoever gets the nomination, convincing enough MAGA types to sit the election out in protest, thus handing Biden an easy victory next fall. 

If SCOTUS loves the GOP, cutting Trump loose is simply the safe move. 

The reality is we're facing a situation never seen before in the United States. A shameless insurrectionist is running for president while under 91 felony indictments. To add to this historic situation, the Colorado Supreme Court on Tuesday banned Trump from appearing on the state's Republican presidential primary ballot. The 4-3 decision follows the clear language of the Constitution's 14th Amendment barring those who "have engaged in insurrection" from running for office. Yet anyone who thinks they know how this will play out over the next 11 months is kidding themselves. The one thing that is dead certain, however, is that the Supreme Court justices would be fools not to uphold this decision. 

Banning Trump from the ballot — in all states, not just Colorado — is clearly what is called for by the Constitution. It takes a herculean effort of feigned stupidity to pretend otherwise. The language of Section 3 of the 14th Amendment, which was written to bar congressmen who joined the Confederacy from trying to pretend all that "civil war" business never happened, is not vague: 

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Even people who want to play word games and quibble wars over Trump's role in the January 6 insurrection — and the weeks prior, where he plotted to overthrow democracy — struggle with that one. It doesn't say convicted of insurrection. It doesn't say that you had to be the leader. You merely had to "engage." So even if you want to pretend Trump wasn't the leader, he was engaged in the coup in every way, from the "fake electors" plot to the part where he egged on rioters who were threatening to kill his own vice president. 

"These actions constituted overt, voluntary, and direct participation in the insurrection," the Colorado Supreme Court wrote in its decision.  

We need your help to stay independent

No one is going to accuse the six Federalist Society justices on the Supreme Court of being bound by the clear letter of the Constitution. As the public has started to realize in the wake of the Dobbs decision and the slow drip of billionaire sugar daddy scandals, the main things the conservative justices care about are pushing their right-wing ideology, helping out the Republican Party and complaining about people who find their corruption unseemly. So fine, if they don't want to do it for the country or the law, then here's an idea: Conservatives of the Supreme Court, do it for yourselves. 

Clearing the way so that Gov. Ron DeSantis or former U.N. Ambassador Nikki Haley can win the Republican nomination solves a lot of problems for the perpetually churlish Republican appointees to the Supreme Court, and not just because it means they never have to talk to Donald Trump again — which seems reward enough! For one thing, it relieves their beloved Republican Party of the squawking orange albatross around its neck. He may be up in the polls now, but history shows that Trump and his election denialism have caused the GOP to underperform in every single election after 2016. Plus, he may be on trial or even convicted by the time November rolls around, neither of which will likely help him in the election. 

Think of it this way: Trump isn't up in the polls. It's more that Biden is down, due to a general malaise and economic complaints from voters. Another Republican would do just as well, and almost certainly better. So if SCOTUS loves the GOP, cutting Trump loose is simply the safe move. 

Want more Amanda Marcotte on politics? Subscribe to her newsletter Standing Room Only.

The justices would also be wise to think about what they want life to look like after the election. If a Republican wins, wouldn't it be so much better for them if it was anyone but Trump? As multiple outlets have extensively documented, Trump's goal when he gets into office is to break the law left and right to enact his agenda. The result is that there will be a veritable ocean of Supreme Court cases, as the ACLU and other pro-democracy groups will file a lawsuit in response to every single boundary-crossing executive order Trump signs. 

You have a choice, justices. The next few years of your life can be defined by billionaire-funded fishing trips and arcane tax lawsuits no one cares about. Or it can be taken up by case after case about Trump and his transgressions. Just as a matter of personal comfort, pick the former. Plus, there's a not-small chance that Trump Pt. Deux decides the Supreme Court does not bind him, and just flat out rejects court decisions he doesn't like. If they don't want to see their power even more eroded, the justices should rid themselves of the Trump problem. 

As an added bonus, it would probably do much more than it should to quell the rising tide of hatred of the Supreme Court if they, just this once, actually did the right thing. Surely that has to be worth something to people who seem endlessly peeved that most people don't like them very much. 

Both Justices Clarence Thomas and Samuel Alito are true-blue authoritarian nuts who cannot wait to sign off on a chance to help Trump become a fascist dictator. But the rest of them would be wise to consider the strong benefits, to them personally, of getting Washington D.C. back to its normal levels of dysfunction. A truly post-Trump GOP is almost certainly one where the justices can spend their time at cocktail parties and giving speeches at legal conferences in comfort and style. Trump just brings headaches because he'll invent a few dozen novel ways to make their jobs even more difficult. 

Also: It's the right thing to do.

I know doing good moves no needles in the self-interested offices of conservative Supreme Court justices, but it is worth mentioning anyway. What January 6 should have proved above all other things is Trump is a danger to everyone, not just Democrats or queer people or immigrants or women. The second he thought it might give him a shot at illegally grabbing power, he sent a murderous mob to the Capitol, threatening the lives of everyone, not just Democrats. His violent rhetoric and delusions of grandiosity are only rising.

I personally don't relish the idea of a President DeSantis or a President Haley, like I imagine the Republican justices do. (Just don't tell them Biden may still win!) But even though the other GOP candidates suck a lot, they probably aren't going to make a run at overthrowing democracy or using extralegal violence against perceived enemies. If Trump gets the White House again, however, he will not hesitate to use his power to harm anyone his paranoia tells him has crossed him, regardless of party.

Even the justices Trump appointed must know he wouldn't piss on them if they were on fire. Just get rid of him, Supreme Court justices. You know, deep down in your hearts, it will be a lot nicer for you when he's gone.


By Amanda Marcotte

Amanda Marcotte is a senior politics writer at Salon and the author of "Troll Nation: How The Right Became Trump-Worshipping Monsters Set On Rat-F*cking Liberals, America, and Truth Itself." Follow her on Twitter @AmandaMarcotte and sign up for her biweekly politics newsletter, Standing Room Only.

MORE FROM Amanda Marcotte