Some progressives have joined with Trump supporters to argue for a reversal of the Colorado Supreme Court’s decision holding former President Trump disqualified for presidential office because of his participation in the Jan. 6 riot. Now, Maine’s secretary of state has reached the same conclusion on disqualification. It’s unsurprising that MAGA supporters are demanding that the U.S. Supreme Court reverse these decisions. But why would Trump’s opponents not support his disqualification?
An older generation of left-liberal scholars and activists grew up with a political movement that worked hand-in-hand with the federal courts. The civil rights movement relied on the courts to intervene against racist institutions for the sake of minority voters, school children and employees. The women’s movement had similar success, working with the courts both to advance equality claims in the workplace and to gain autonomy over matters of marriage and reproduction.
These successful movements shaped a generation’s attitude toward the Supreme Court. That attitude lingered even as the court set about dismantling the achievements of the Warren and Burger courts, becoming in recent decades the leading edge of conservative politics. It has been some time since liberals regularly thought of the Supreme Court as a partner or even sought to bring cases before the court. Still, the older generation maintains a memory and a hope of that earlier partnership.
A younger generation on the left has known only a conservative, reactionary court. They distrust it for good reason. They have gotten little from it, even as conditions of inequality have worsened in the country. Their distrust of the Supreme Court colors their attitude toward the politics of their parents’ generation. Too much reliance on the court, they believe, resulted in only shallow victories. That which the court gave, it could take away. In a democracy, the only secure foundation for progressive reform is in the people themselves. The hard work of democratic politics, they believe, is to persuade the people, not five members of the Supreme Court.
The new left is a populist left, believing that lasting political change comes through success at the polls, not in the courtroom. This argument works well in theory, but it is far from the facts of American politics. It offers a false choice between a judicial decision and a democratic decision. The U.S. is not now, and has never been, a working democracy. The problems are not occasional irregularities but structural features.
Begin with the fact that Trump lost the popular vote in 2016, just as he lost it in 2020. Some recent polls have him losing the popular vote again, even as he is projected to win the Electoral College. The democratic credentials of the Electoral College are no better than those of the Supreme Court.
Then consider the second impeachment trial against President Trump. Most senators voted in favor of his conviction. They represented the views of a majority of the nation’s voters, who were disproportionately in favor of conviction. Disqualification from office would have followed from conviction. Institutional empowerment of a minority saved Trump from the judgment of the people. A more democratic system would have given effect to majority sentiment, which would have spared us from this round of MAGA politics.
It gets worse: If Donald Trump becomes the Republican presidential nominee, it may not be because he has managed to gather a majority of Republican votes in and through the primaries. Multiple candidates splinter the field, and there are no regular run-offs to determine where majority sentiment lies.
Moreover, participation rates are low, skewing the primaries in the direction of the most ideologically committed voters. An array of obstacles make registering and voting difficult for some people.
The Supreme Court itself often argues against judicial intervention in “democratic” politics. If it votes to reverse the Colorado Supreme Court, it will no doubt make this argument. But a court that wants to defer to democratic politics must act to protect that democracy. The Supreme Court, in just the last few years, has gutted the Voting Rights Act, unleashed the floodgates of dark money and declared political gerrymanders outside the remedial reach of the federal courts. The court cannot defer to democratic outcomes unless it is willing to defend the necessary mechanisms of democracy.
The American founders were notoriously hesitant to create a pure democracy. At least they were honest about their democratic skepticism. We still live in the world of political institutions they created. Too often, however, we lack their honesty, speaking as if we are a modern democracy.
It is too late in the game to argue that the court should stay its hand on the issue of Trump’s disqualification to let the voters decide. There is at least a generation’s worth of work to be done before American voters will be able to decide who leads the national government.
Rather than worry about the anti-democratic character of a judicial intervention holding Trump disqualified, the left should demand judicial intervention to address our democratic pathologies, including voter restrictions, dark money and gerrymanders. In a properly working democracy, we would have little to fear from an aspiring authoritarian like Trump.
Once, the courts were leaders in articulating the moral vision of equality and liberty that is itself the strongest ground for belief in democracy. Without that backbone, the idea that the courts are deferring to a democratic electorate is a sham.
Paul W. Kahn is Robert W. Winner Professor of Law and Humanities at Yale Law School.