USA TODAY: Supreme Court should ban Trump from the ballot.

Supreme Court should ban Trump from the ballot. And not worry about the political fallout.

More than the presidential election will be at stake when the Supreme Court settles whether former President Donald Trump is disqualified from office for being accused of engaging in insurrection.

Thomas G. Moukawsher
Opinion contributor

Most justices on the court are proponents of “textualism,” which means they believe that judges should interpret laws based on the meaning of the text and not be concerned with the political consequences of their rulings.

Indeed, Justice Samuel Alito promoted this self-declared virtue in his 2022 majority opinion overturning Roe v. Wade, declaring that the court cannot be affected by “how our political system or society will respond” to rulings in controversial cases.

If we focus on those words alone, then we would say that if Trump is found to have engaged in an insurrection on Jan. 6, 2021, he can’t be president again.

Justices will hurt court’s credibility if they consider political implications of blocking Trump from ballot

But if the nation’s highest court ignores that reality and takes political considerations into account, it will damage its credibility further. Plenty of people have suggested ham-handed ways to do it. The trial court in the Colorado case adopted Trump’s far-fetched argument that the president isn’t an officer of the United States and doesn’t take an oath to support the Constitution.

Others, including Trump, have argued that when the 14th Amendment says Congress may enact legislation to enforce the amendment, it means it must enact legislation or Section 3 is a nullity.

Still others have said that Trump must be given a fair hearing through the trial process before he can be disqualified from appearing on the presidential ballot, even if that means he could serve four more years as president before the case was heard.

Yale law professor Samuel Moyn has urged the court to unanimously overturn the recent Colorado Supreme Court ruling by paying no attention to the language and making an entirely political argument that the court must not appear to be taking away the people’s chance to vote.

Rationales like these shed all pretense of legality. But the justices should have no illusions. If they discard their principles about the plain meaning of words, none of these rationales will prevent the public from seeing the court as wholly political.

Vice president could take Trump’s place after 2024 election

Under this scenario, Trump’s name could still appear on the ballot and he could still be elected president, even if he were declared disqualified to hold the office. In that case, the vice president would step in to serve as president. Even then, Congress could vote to erase Trump’s disqualification, but it would require a highly unlikely two-thirds majority.

If Trump were to win the 2024 presidential election, taking this route would leave the court with trouble later. But if he loses, the court might never have to disqualify Trump. In either event, postponing the issue would be credible because it is consistent with the long-standing view that the judiciary should avoid constitutional dilemmas when it has a sound reason to do so.

Thomas G. Moukawsher is a former judge from Connecticut.

Thomas G. Moukawsher is a former judge from Connecticut and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of a new book, “The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.

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