The Case for a Democratic Supreme Court that Doesn’t Distinguish from the Colorado House of Representatives: Donald Trump and the Social Justice Era

When Donald Trump appeals the Colorado decision disqualifying him from the ballot in that state’s Republican primary, the Supreme Court should overturn the ruling unanimously.

Like many of my fellow liberals, I would love to live in a country where Americans had never elected Mr. Trump — let alone sided with him by the millions in his claims that he won an election he lost, and that he did nothing wrong afterward. Nobody lives in that country. For all the power the institution has arrogated, the Supreme Court cannot bring that fantasy into being. It would be unfair to bar Mr. Trump from the election because of the many years of turmoil in the political system.

Part of the dilemma is that the whole thing is still too much to know, even if Mr. Trump played a key role beyond the election. Even though the facts were deferred to a lower court, many Americans still believe Mr. Trump did nothing wrong. A Supreme Court that affirms the Colorado ruling would have to succeed in constructing a consensual narrative where others — including armies of journalists, the Jan. 6 commission and recent indictments — have failed.

The multiplicity of cases gives the justices an opportunity to keep an eye on how decisions will affect the political landscape. The point is not that getting the underlying legal questions “right” is irrelevant. But when the stakes are this high and the legal questions are novel, the justices have a duty to hand down decisions that resonate across the political spectrum — or at least that avoid inciting violence in the streets. That is preserving the rule of law, not subverting it.

A tribunal that is supposed to be away from politics is a lot for the Supreme Court to handle. At a tough time for the court, this is happening. In August 2000, on the eve of Bush v. Gore, 62 percent of Americans approved of how the Supreme Court was conducting itself. The polling shows that nearly one quarter of respondents disapprove of the institution, which is an all time low for the court.

The court has agreed to hear a case asking whether Jan. 6 rioters can be charged with obstructing an official proceeding, another key part Mr. Smith’s Jan. 6 case against Mr. Trump. The former president will request a reversal of the Colorado Supreme court ruling that could lead to the removal of his name from the ballot in many states.