Former US President Donald Trump
Credit: Reuters Photo
By Jessica A. Schoenherr and Jonathan M. King for The Conversation
Virginia: Can Colorado disqualify former President Trump from the state’s primary ballot? That’s the momentous question the US Supreme Court will consider in Trump vs Anderson, a case being argued before the justices on Febuary 8, 2024.
The case involves the justices wading into the unfamiliar waters of the 14th Amendment’s insurrection clause. Legal experts on both sides of the political aisle filed amicus briefs to plead with the justices to either allow Trump to stay on the ballot or keep him off it.
As scholars who study how the federal judiciary is changing, we believe that Trump’s unprecedented relationship with the judiciary makes this case important in ways that go beyond the legality of his ballot removal. One dark shadow hanging over this case is that the justices’ decision could affect the court’s legitimacy, too.
Public support for the court and its overall legitimacy are already at all-time lows. Part of this results from the current polarization of the electorate. That polarization has led people to shift their support for the court based on their perceptions of the court’s partisan leanings. Trump’s efforts to politicise the court may also contribute to these negative feelings.
The justices have done many things to hurt the court’s legitimacy, too, from upending the legal status quo on issues such as abortion to accepting money and luxury vacations from people whose interests have appeared in cases before the court.
No matter how hard the justices work to head off negative perceptions of the court, they have been unsuccessful at restoring their institution’s legitimacy.
And now, against this backdrop of vitriol and low support, the court must answer a question that has never been asked: Does Section 3 of the 14th Amendment mean Colorado can keep Trump off the ballot?
Trump’s relationship with the federal judiciary – both the judges who serve in the federal judiciary and the broader legal institution itself – differs from that of his predecessors. He talks about the court system not as an independent branch of government but as a political institution whose positions should align with his own.
In his Jan. 6, 2021, speech before the attack on the US Capitol, Trump sounded miffed at the three justices he had nominated to the Supreme Court. They were ruling against him now, he said, perhaps to counter the perception that “they’re my puppets.”
Modern presidents have always sought to mold the judiciary by selecting justices whose records align with the nominating president’s political preferences. But historically, presidents were careful to discuss the courts in legalistic terms and avoid politicizing the judiciary.
Trump flouted those norms. In an unusual move, he released a list of potential Supreme Court nominees while campaigning for the 2016 GOP presidential nomination, touting the conservative credentials of the names on his list.
Once elected, he asked members of the Federalist Society, a group dedicated to putting conservative judges on the bench, to help him select nominees, including the three justices he eventually put on the Supreme Court.
Once the Senate confirmed his nominees to the Supreme Court, Trump referred to Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett as “my” judges.
And as his legal cases have made their way through the courts, he suggested that judges he nominated at any level – district, circuit or for the Supreme Court – owed him favorable rulings because he gave them their seats.
One of Trump’s lawyers in the Colorado ballot case now before the Supreme Court suggested in January 2023 that “people like Kavanaugh who the president fought for, who the president went through hell to get into place, he’ll step up.”
And Trump has questioned the credentials of most judges who have ruled against him, whether it’s in response to cases involving his presidential policies or those involving his personal conduct, especially when Democrats nominated those judges. When judges have refused to bend to his will, Trump has pushed back, lambasting the judges as biased and saying they were “out of control” and the court system was “broken and unfair.”
He used social media to call the federal judge presiding over his Jan. 6 prosecution a “TRUE TRUMP HATER.”
Increased criticism, decreased legitimacy Framing the Supreme Court as a political institution beholden to the president diminishes the court’s legitimacy in the eyes of the public. Research shows that people’s support for the court decreases when a politician they like criticizes it.
Some people also struggle to believe that judges who do not look or think like them are neutral arbiters of the law, so Trump’s comments potentially inflame those beliefs and increase people’s wariness of the judiciary.
Beyond that, Trump constantly tries to make the point that the entire judicial nominating process is political, from identifying judges by which president nominated them – for example, an “Obama judge” or a “Trump judge” – to his leaning on the justices he put on the court. This has the broader effect of framing the Supreme Court as a political rather than legal institution. And that dramatically decreases its legitimacy.
Put simply, people support the court less when politicians attack it, and Trump frequently attacks the judiciary.
Because unlike the president or members of Congress, who can enforce their own laws and policies – as long as they abide by the Constitution – the Supreme Court depends on other institutions for enforcement of its opinions. The court lacks the literal force or money to enforce its decisions.
Consider the Supreme Court’s famous 1954 ruling in Brown vs Board of Education, which ordered the end of school segregation. That ruling did not get enforced in most of the South until the president and Congress passed laws that punished schools that refused to integrate.
Those institutions enforce Supreme Court decisions only because the public believes the court is a legitimate legal institution with the authority to make decisions about the law and get them enforced.
This belief in judicial authority stems from several different sources, including elementary education on democratic values, the justices’ concerted efforts to avoid all but the most favorable media attention, their focus on showing the principled nature of their decision-making process, their aim to mitigate negative public sentiment and even their decision to separate themselves by wearing robes to political events.
To be sure, people are not naive about the political nature of Supreme Court decision-making. But as long as the justices’ decision-making appears principled, research has found that the court remains legitimate to the public, even if the court issues a decision the public dislikes.
Typically, the justices lean on precedent to defend their rulings, but the justices cannot do so in the Trump Colorado ballot case. No precedent exists.
Combined with the court’s low popular support, moving into uncharted legal territory means the justices face, for the first time in a while, the possibility that people might defy or ignore their rulings. In fact, Sen. JD Vance, a Republican from Ohio, suggested in a recent interview that the president could defy the Supreme Court.
Consequently, while the justices’ decision will be important for constitutional and democratic reasons, the public’s response to the ruling will be just as important for democracy and the rule of law in the US.
( Jessica A. Schoenherr is the Assistant Professor of Political Science, University of South Carolina and Jonathan M. King is the Assistant Professor of Political Science, West Virginia University)