If SCOTUS Won’t Enforce the 14th Amendment, We Should Worry How They’ll Handle the 22nd

Trump supporters in Michigan sue, and the case quickly reaches the Supreme Court. What should the Court do? In this imagined future, what is the Court likely to do? 

Until recently, the answer to the first question was uncontroversial: It should strike Obama from the ballot. But in this scenario, the answer to the second question is much harder: The Court would have to know that keeping the likely Republican nominee on the ballot but knocking the preferred Democrat off would render it partisan beyond repair. 

Bassin notes that Trump, on several occasions, said he would seek a third term if he gets to the White House again.

Notwithstanding the implausibility of this argument as a legal matter, it is not hard to see how, if returned to power, Republicans might rally behind it in 2028 just as Democrats might rally behind Obama in the tale just told, especially if the Supreme Court decides this year that it is not its job to enforce the Constitution to bar popular candidates from the ballot. 

Which is just one of many reasons why the Court must do the hard thing this week and apply the terms of the 14th Amendment, regardless of where that leads, notwithstanding numerous good- and bad-faith objections about why it would be imprudent for them to do so.

Bassin concludes:

The drafters of our Constitution understood this paradox. They knew that giving we the people sovereignty posed risks that we’d make choices that might squander it. To avoid the risk that voters might be tempted by the appeals of dynasty, they required presidents to be at least 35 years old. To avoid the risk that voters might be tempted by the appeals of a British nobleman and brought back under the thumb of the king, they required presidents to be natural-born citizens. To avoid the risk that voters might be tempted by the appeals of a popular long-serving incumbent, they required presidents to serve no more than two terms. And to avoid the risk that voters might be tempted by a demagogue uncommitted to the oath of office, they required presidents to not have violated a previous oath by engaging in insurrection.

….

A faction in this country is crying out in response to Trump’s appeals for the Court to loosen the ties when history teaches this is the moment for the justices to tighten them.

Because if the Court isn’t willing to impose the restrictions of the 14th Amendment in the face of today’s siren song of “letting the voters decide,” what does that say about the likelihood that they’ll do so when the 22nd Amendment is at stake? If the justices release us from the constraints we placed on ourselves in the 14th Amendment, limiting our own choices in order to preserve democracy, then our ship of state may, to quote Homer, “smash[] upon rocks as sharp as spears,” and our democracy may “join the many victims of the Sirens in a meadow filled with skeletons.”