The judges will be judged

I have to admit, when rumblings about the applicability of the Fourteenth Amendment's clause disqualifying insurrectionists from running for office arose, I was beyond skeptical. I figured this was yet another attempt to substitute some gimmick for the hard slog of overcoming Trump, MAGA, and his rump Republican Party within the ordinary electoral framework of majority rule. Of course I'd like to skip that agony, but can we really?

As we approach the moment when the Supreme Court will take this up, there's plenty of learned commentary telling me I'm wrong. I found this particularly convincing from Yale historian of European authoritarianisms, Timothy Snyder:

If we ignore the Constitution now, it will not protect our rights later.  We are ignoring it now, because we are afraid.

... This is not an issue we are “free to assess,” because we are governed by the Constitution. For the same reason, we cannot vote for oath-breaking insurrectionists such as Donald Trump. Such people are barred by the Constitution from running for president.

We can have the Constitution, or we can have Trump.

Legions of historians of the United States have chimed in. Princeton professor Sean Wilentz is only the latest to offer a magisterial refutation of Trump's legal arguments against disqualification. 

With oral arguments before the Supreme Court set for February 8, Trump and his advocates have outdone themselves, serving up the sophistry and chicanery contained in the amicus brief prepared on behalf of Senator Ted Cruz and 178 other MAGA members of Congress and filed on January 18. Seemingly a road map for the conservative justices to stop disqualification, the brief reads more like a game of three-card monte. ...

... The conservative majority of the Supreme Court—and the historical legacy of the Roberts Court—have reached a point of no return. The law, no matter the diversions and claptrap of Trump’s lawyers and the pundits, is crystal clear, on incontestable historical as well as originalist grounds. So are the facts of the case, which in any event the Supreme Court is powerless to review. The conservatives face a choice between disqualifying Trump or shredding the foundation of their judicial methodology.

But the choice is far more profound than the Court’s consistency. In 2000 it disgraced itself by manipulating the Fourteenth Amendment to produce Bush v. Gore, a ruling that changed the course of history and was later described by Justice Antonin Scalia, who concurred in it, this way: “As we say in Brooklyn, a piece of shit.”

Now the Court must decide whether it will honor the original meaning of the Fourteenth Amendment and disqualify Donald Trump. If it does so, it may redeem in part the terrible judicial malpractice of 2000.

If it does not, it will trash the constitutional defense of democracy designed following slavery’s abolition; it will guarantee, at a minimum, political chaos no matter what the voters decide in November; and it will quite possibly pave the way for a man who has vowed that he will, if necessary, rescind the Constitution in order to impose a dictatorship of revenge.

On that day in 2000 when the Supreme Court handed a contested presidential election to Republican George W. Bush, I was in a board meeting of a community organization created to increase electoral participation among people of color and young people who felt left out of the system. I remember saying, "we've just had a coup." We didn't know what to do but slog along -- and I think we helped make California the model of democratic (small "d") pluralism we have today.

If the Supremes discredit themselves again by overturning the Fourteenth Amendment's clear disqualification of an insurrectionist, we will slog along again. Democracy cannot be a spectator sport.