7 min readFeb 8, 2024 10:24 AM IST
First published on: Feb 8, 2024 at 07:07 AM IST
Today the Supreme Court of the United States is hearing what might possibly turn out to be one of the most consequential court cases in the history of democracy. The case involves a simple question: Can Donald Trump be disqualified from running for re-election for the President of the United States? At the heart of the case is the interpretation of Section three of the 14th Amendment of the US Constitution, which disqualifies from any state or federal office anyone who engages in insurrection, having sworn to uphold the Constitution of the United States. The interpretation of this provision is a fascinating grey area in US constitutional law that is dividing constitutional lawyers, for the most part on partisan lines. A federal court has ruled that Trump does not have blanket immunity for his actions as President. Granting such a blanket immunity would have the consequence of placing the President of the United States above all law, the quintessential definition of tyranny.
The Court will have to rule on a number of issues, each of which will set a fraught precedent. The first issue is the interpretation of Section three of the 14th Amendment. What was the purpose of this Amendment? Was its role meant to be confined largely to the aftermath of the Civil War? Or, more technically, whether the President comes under the category of “officer” for the purposes of this section. Ruling that the President is not an officer would have the consequence of, in effect, saying that the President can, in fact, engage in something like insurrection and still not be prosecuted.
The second issue is whether the January 6 insurrection was indeed an insurrection or something else. Is there an objective threshold of what counts as an insurrection? Or, will the semantic takes on this term track partisan affiliation? And the final issue is that if this was indeed an insurrection, what role did Trump play in it? The Court will have to use one of these issues to argue that Trump should not be disqualified.
But what makes this case so fraught is not just a dispute over the interpretation of the law and the facts. The case speaks of the future of American democracy in more ways than one. First is the conceptual issue. Trump supporters, but not just Trump supporters, are uncomfortable with the idea that a popular leader should be disqualified by a court. He ought to be defeated in the polls — any act of legal disqualification would be the usurpation of a democratic process by lawyers and judges. Even if he deserves to be disqualified, his actions will not be delegitimised. It would lack democratic credibility.
For those who think Trump should be disqualified if the evidence holds up, it is important that no leader is seen as being above the law. That is also the essence of democracy. Further, the idea that disqualifying Trump, if he did indeed engage in insurrection, is anti-democratic is a curious one. After all, the charge against Trump is that he was refusing to abide by the result of an election and thereby subverting democracy.
But the argument is not just about legal interpretation or even how to interpret the past. Rather, it is an expression of anxiety about the future. For those who think it is right to legally disqualify Trump, the act of disqualification is a blow to him on behalf of democracy. If he is in office again, he will subvert American democracy: He has already threatened mass deportations and retribution against opponents. But for his supporters, disqualification is retribution.
Behind this debate lie two fears. The first is that whatever the outcome of the legal proceedings, it must not only be just but also appear to be just. But it is becoming increasingly difficult for the law to carry the imprimatur of impartiality. Trump is alleging that all prosecutions against him are partisan and motivated, and judges so far politically partisan. The US Supreme Court in recent years is also seen to be deeply ideologically divided. The one way in which any verdict might carry the imprimatur of impartiality is if it is a unanimous decision. This is not a guarantee of legitimacy, but may go a long way towards it. In the unlikely event that the Court disqualifies Trump, the one saving grace will be that at least two Republican appointees will have to vote for the disqualification. But a straight partisan vote will deepen the crisis of legitimacy of the Court.
But there is a deeper fear that haunts this case: The fear of violence. There is a palpable sense of dread that disqualifying Trump will potentially unleash violence. Whether or not it does so, the fact that the hearing is taking place under the shadow of it already taints a possible verdict.
The potential for violence is equally hard to predict. Trump is popular. He solidly owns the Republican party and his disqualification will be seen as an act of disenfranchising millions of voters. On the other hand, Trump has not been mobilising violent crowds so far. Would this change with a legal decision? Would the Republican Party use this as an excuse to finally break free of him? Or, will they fear an even worse backlash for not standing up for him? This is a difficult call to make. There is also a potential scenario where officials in Republican states simply refuse to honour the Supreme Court’s decision, and there is a strong backlash against Democrats who will now be accused of stealing an election. Either way, the potential disenchantment of a very large number of voters from the political process is almost certain.
So, American democracy is in a bind. A legal disqualification, if it happens with a narrow majority, will not have enough public legitimacy and will leave the Republicans aggrieved. If Trump is not disqualified and the vote split is partisan, it will be seen as a triumph of impunity. And there is the matter of what a Trump victory might mean for the future of democracy anyway. It will take an incredible feat of legal finesse, persuasive eloquence and consensus in the Supreme Court to navigate this thicket. But there is no evidence that the Court is capable of rising to the occasion. The moral of the story is that when a country needs the courts to save democracy, democracy may lose, whichever way the court rules.
The writer is contributing editor, The Indian Express
Former US President Donald Trump appears in court for his arraignment, Tuesday, April 4, 2023, in New York. (AP) 
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