How Far Can Democracy Bend Before It Breaks?

Red-toned image with headlines and tweets relating to Donald Trump's legal cases against him and then a large image of Donald Trump holding a red-toned image of the nine justices on the U.S. Supreme Court.

Former President Donald Trump whined to the U.S. Supreme Court that it was “undemocratic” to take him off the ballot after he tried to undemocratically disenfranchise the majority of Americans who voted against him in 2020. Now, Trump crows about his “beautiful” Supreme Court win that he gets to stay on the ballot despite being an insurrectionist. Another institution of democracy bends to accommodate someone who only believes in democracy “if I win.”

“This will always remain one of the best jokes of democracy,” noted Hitler’s propagandist Joseph Goebbels, “that it gave its deadly enemies the means by which it was destroyed.” Has the Supreme Court done just so?

You will be hard-pressed to find the constitutional foundation of the Supreme Court’s ruling. The Court did not follow Section 3 of the 14th Amendment, its history or original intent. Twenty five of America’s best historians submitted a brief to the Court showing how the Framers intended for the 14th Amendment to apply to a president with no conviction required. Section 3 is self implementing, meaning Congress does not have to pass a law to make it apply; in fact, Congress must act to make it not apply.  

The facts of the case should have disqualified Trump from future office. The Colorado trial court held a five-day hearing granting Trump’s legal team every chance to show he was not an insurrectionist, yet he lost before this court. Moreover, the bipartisan congressional Jan. 6, 2021 commission made a complete and conclusive finding, after days of open and televised hearings, that Trump incited an insurrection simply because he could not accept that he lost the 2020 election.  

Just like it did over 20 years ago in Bush v. Gore, the Supreme Court made a policy decision, not a legal one. Trump gets a pass because of the prudential concern of having this decision done by states. Maybe that’s appropriate.

Did the Court bend to give us “one of the best jokes of democracy” to have it break? 

After all, having 50 secretaries of state, governors or even state Supreme Courts with the power to disqualify a major political candidate is not a good system. Before you know it, some governor wanting to get on Fox News might engage in a little tortured reasoning by claiming President Joe Biden is an “insurrectionist” for not “securing the border.” (Sean Hannity, Tucker Carlson and Laura lngraham will happily queue this up.)

So, the Supreme Court, as an institution of democracy, bent the law and itself to accommodate Trump. That democracy keeps bending for Trump shows how far somebody with no personal shame can go while having no respect for institutions or democracy itself.  

Trump also wants “presidential immunity” for all crimes he committed as president, including those to subvert democracy. Trump single handedly rehabilitates former President Richard Nixon whose claim that “when the president does it, it means it is not illegal” looks benign in comparison. Will the Court bend again to grant Trump this immunity?

What about the next time Trump loses an election and has his followers storm Congress, but this time better organized and more lethal? What if, despite the 27th Amendment, Trump argues that because “the radical leftist Democrats” wasted his first term with an investigation into his Russia connections, he deserves to have a third term? Will the Court bend again?

What about a Trump imitator, perhaps less narcissistic but more politically intelligent, who now has the playbook to mount an insurrection with immunity? Has the Court just given him or her the playbook for a joke on democracy?

Yet Trump continues to whine that everyone treats him unfairly while he gets preferential treatment. The list of his grumbles runs long: the Russia investigation was a “witch hunt,” his squirreling away truckloads of classified, top-secret documents for personal gain and vanity was no big deal, a jury holding him accountable for raping and defaming a woman (and defaming her again) is a “disgrace,” his paying off a porn star to avoid a political embarrassment is not a campaign finance violation, a judge’s finding that Trump committed fraud is “persecution.” On and on his grievance list grows.

Yes, the Supreme Court, another institution of democracy, bent to accommodate Donald J. Trump. Maybe it was the correct decision.    

But did the Court bend to give us “one of the best jokes of democracy” to have it break?  

Robert J. McWhirter is a constitutional law expert and a practicing criminal defense and civil rights lawyer in Maricopa County, Arizona. In 2022, he published a book, “Fixing the Framers’ Failure: The 13th, 14th, and 15th Amendments and America’s New Birth of Freedom,” an analysis of how individual liberty has evolved in the U.S. Constitution.