David Bell – The 2024 Election’s Judicial Turn

28 December 2023


Presidential elections are occasions of great drama and uncertainty. In some races, candidates can emerge from relative obscurity to blaze a path to the White House, like Jimmy Carter in 1976 or Barack Obama in 2008. In others, front-runners can see their chances evaporate in the glare of scandals or gaffes, as with Gary Hart in 1988 (sex scandal) or Howard Dean in 2004 (strange behavior). A single memorable line (Ronald Reagan’s “I am paying for this microphone” in the New Hampshire primary debate of 1980; Walter Mondale’s “Where’s the beef?” against Hart in 1984), or disastrous televised image (Michael Dukakis haplessly trying to steer a tank in 1988) can make more of a difference than a hundred carefully crafted position papers.

The election of 2024 promises to be no less dramatic. But to an extent utterly unprecedented in American history, the principal drama of at least the next few months will most likely take place in the courts, not on the campaign trail. On the one hand, both major parties already have their presumptive nominees. When voting begins in two weeks in the Iowa caucuses, the only, very subsidiary drama will concern which of the Republican party’s also-rans will come in a distant second to Donald Trump in the race for the nomination. When it comes to scandals and gaffes, meanwhile, Trump has already shown himself utterly impervious to their effects, at least among the MAGA faithful, even though virtually everything he says or posts would destroy a normal presidential campaign. And President Biden is behaving with the sort of caution that befits an octogenarian tiptoeing along a cliff edge, so scandals and gaffes seem unlikely on the Democratic side as well.

On the other hand, decisions made in courts of law have the possibility of deeply altering the election’s trajectory. Within a few months, the United States Supreme Court is likely to rule on the decision by the Supreme Court of Colorado banning Trump from the state ballot under the Fourteenth Amendment’s provision for excluding persons who “have engaged in insurrection.” In January, a federal appeals court will rule on a motion by Trump’s lawyers asserting absolute immunity for his actions while president, which would quash prosecutor Jack Smith’s federal case against him for election subversion, currently scheduled to start March 4. The appellate ruling will itself likely end up before the Supreme Court. Trump faces criminal charges for falsifying business records in respect to payoffs to porn star Stormy Daniels in a New York case scheduled to start March 25, and for egregious mishandling of secret documents in a federal case scheduled to start May 20. Further criminal charges for election subversion, in Georgia, do not yet have a trial date set. And Trump faces civil charges in a defamation case brought by his alleged rape victim E. Jean Carroll in a trial starting January 16, and a ruling in a New York fraud case in which judge Arthur Engoron has already found Trump and his partners responsible—and could impose a penalty of as much as $250 million. It is also possible that President Biden will face a different sort of judicial procedure: an impeachment vote in the Republican-controlled House of Representatives.

The worst-case scenario for Trump is that by election day he has been found guilty on criminal charges and faces jail time; that the civil cases have largely destroyed his business empire; and that battleground states have excluded him from the ballot. In the best-case scenario, the criminal cases have either not yet come to trial or resulted in exoneration; the civil cases have done little or no damage; and the Supreme Court has overruled Colorado and ensured his presence on all state ballots. However things turn out, the decisions will be both enormously dramatic and enormously consequential.

Whatever one’s feelings about Donald Trump, it is hard not to lament this turn of events. In a democracy, the people should decide, not the courts. If the Supreme Court upholds the Colorado decision (improbable, but not entirely impossible), and battleground states exclude Trump from consideration, then a large proportion of the electorate will see the election as fundamentally illegitimate, something that is in no way healthy for American democracy. If a slew of criminal convictions were, somehow, to force Trump from the race, the result would be effectively the same. Yes, it can be argued that in the face of a candidate as noxious, indeed as potentially tyrannical as Donald Trump, undemocratic means may be necessary to save democracy. But better to avoid this recourse if at all possible.

In principle, the Republican party has far less right to complain about a judicial role in elections than the Democrats. This is a party whose leading ideologues routinely assert that the United States is not a democracy, but a constitutional republic, so as to justify things like the allocation of two senators each to Democratic California and Republican Wyoming, despite the population disparity of sixty-seven to one between the two. This is a party whose presidential candidates, in this century, have twice won elections while losing the popular vote, thanks to the electoral college. It is a party whose victory in 2000 (Bush over Gore) came only as a result of a ruling by the United States Supreme Court. But consistency is not the party’s strong suit either.

For the Democrats, meanwhile, there are important practical, as well as principled, reasons to regret the way that the path to the White House currently leads through the courtroom. And it is not just that the various cases have energized Trump and his supporters and given superficial credence to the notion that the deep state and American elites are using illegitimate means to keep him from returning to the presidency. The election’s judicial turn also sends the not-so-subliminal message that a deeply unpopular President Biden cannot win reelection on his own merits.

Ironically, the judicial procedure most likely to help Biden is the one that would target him, rather than Trump. On December 13, the House voted along party lines to authorize a formal impeachment inquiry into the president. They had no grounds for doing so. Republican accusers claim, without the slightest proof, that Biden corruptly intervened in various matters while Vice-President between 2009 and 2017 to help his son Hunter’s business ventures. Yet even if the accusers manage to find evidence that they can somehow spin as inculpatory, some prominent GOP figures (for instance, Senator Markwayne Mullin of Oklahoma) have already warned the House that it cannot legally impeach a president for offenses committed before he took office. Even if the House Judiciary Committee ultimately does recommend impeachment to the full House, the Republicans might well fail to secure the necessary votes for it, given their slender 221-213 majority. And even if the House impeaches, the Senate would certainly fail to convict by the necessary two-thirds vote. In short, impeachment will cause little but embarrassment for the Republicans, and help Biden’s campaign. The Republicans would do well to let the matter quietly drop right now, but such is the hatred of Biden among the MAGA faithful that they probably cannot do so.

Conceivably, by summer, all or most of these judicial issues will be resolved one way or another, and a presidential campaign can take place in which the record, and platforms, and behavior, and, yes, the one-liners of the candidates again take center stage. It will still not be, by any stretch of the imagination, a normal campaign, given Donald Trump’s role as the black hole of American politics, dragging all matter and energy irresistibly towards its deadly event horizon. But at least it will be a more democratic one.

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1 Comment

  • I for one do not lament this judicial turn and applaud the decisions in Colorado and Maine to remove Trump from the ballot based on the undisputed fact that he engaged in insurrection on January 6, 2021.
    I consider it improper to retreat from the idea that the judicial branch is one of three co-equal parts of democratic governance. The decision-making tasks in a democracy are divided up and assigned to different branches according to type: the president gets to be commander in chief, etc; the legislature the “power of the purse” etc; and the judicial branch decides legal matters and interprets state constitutions and the US Constitution.
    That “a large proportion of the electorate will see the election as fundamentally illegitimate” — whatever “large” here means — is possible but I think unlikely, and it certainly will be no more harmful to American democracy than the frequent Electoral College distortion of American democracy or the US Supreme Court’s 5-4 decision to force the halt of the Florida recount in the presidential election of 2000 (where Gore was the clear popular vote winner nationwide). Was there a “large proportion” of people complaining about that decision?
    Face it, January 6 was an outlier event. On average, Americans are far more interested in the Superbowl and Taylor Swift than they are in defending democracy or saving the planet.
    Besides, many judges in the US are elected officials, or once were; so if “the people” deciding is what confers full legitimacy, American democracy has that base covered too.

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