Trump’s Own Appointees Will Decide if He Stays on the Ballot. That’s a Good Thing.

If the ex-president is disqualified from office, it will be because at least one of the justices he nominated votes to do it.

Trump and Kavanaugh

Donald Trump announcing his nomination of Brett Kavanaugh to the Supreme CourtAlex Brandon/AP

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When Donald Trump’s lawyers head to the Supreme Court next month, they’ll be making their case to some familiar faces: three justices that Trump appointed.

On Friday, the court agreed to hear the ex-president’s appeal of a recent Colorado ruling that Trump, due to his role in fomenting the January 6 attack on the US Capitol, is prohibited by the 14th Amendment from running for office again. The case—which could impact the presidential election in other states, as well—will likely be one of the most important that SCOTUS has ever considered. The constitutional issues are incredibly complex, and the stakes are as high as they get. The right answer isn’t obvious. Some influential conservative legal scholars have argued that Trump should be legally barred from the ballot; some high-profile liberals have countered that in a democracy, the decision should be left to the voters.

No one knows how the case will come out, and it’s entirely possible that the court will rule overwhelmingly, perhaps even unanimously, to let Trump run for office. But one thing seems reasonably clear: If the Supreme Court does decide to ban Trump from running (or to allow individual states to keep him off their ballots), it will likely be because at least one of the justices Trump appointed votes to do so.

The math is fairly simple. Assuming Clarence Thomas doesn’t recuse himself, it will take five votes to uphold the Colorado decision. Three of those would presumably come from the three Democratic appointees. The two most conservative justices on the court—Thomas and Samuel Alito—are probably the least likely to vote against Trump. So to win, Trump will probably need to convince three of the remaining four jurists, a group that includes Chief Justice John Roberts and the three associate justices that Trump himself put on the court.

Trump’s team is well aware of this dynamic. Appearing on Fox News this week, Trump attorney Alina Habba said, “I think it should be a slam dunk in the Supreme Court. I have faith in them.”

“People like Kavanaugh, who the president fought for, who the president went through hell to get into place, he’ll step up, those people will step up,” she added, “not because they’re pro-Trump, but because they’re pro-law, because they’re pro-fairness. And the law on this is very clear.”

The “hell” that Trump and Republicans went through to get these justices on the court is well documented. Neil Gorsuch owes his position to unprecedented GOP obstructionism and an unlikely Trump victory in 2016. Trump stayed loyal to Brett Kavanaugh as Kavanaugh denied sexual assault allegations during his confirmation battle. And Amy Coney Barrett was the beneficiary of outlandish Republican hypocrisy when Trump pushed through her appointment after Ruth Bader Ginsburg died in the run-up to the 2020 election.

Despite her caveat about these justices being “pro-law” and not “pro-Trump,” it seems pretty clear that Habba was suggesting they owe a favor to the man who gave them their lifetime gigs. But here’s the thing: If the justices do harbor any residual loyalty to Trump, they haven’t shown it in the raft of litigation that has followed the 2020 race. They didn’t protect Trump from the January 6 committee, and they haven’t (so far) insulated him or his allies from prosecution. Not a single one of them, not even Thomas and Alito, voted to overturn Biden’s victory when they had the chance. That’s been true at all levels of the federal judiciary. Over and over, (most) conservative judges have followed the law—protecting legitimate election results, holding January 6 rioters accountable, and declining to help MAGA World rig the 2024 election.

No matter what the Supreme Court does with the Colorado case, millions of Americans will be enraged. Having lived through January 6, I certainly don’t imagine that Trump’s fans would react calmly if the court kicks him off the ballot, depriving Republicans of the opportunity to vote for their party’s clear frontrunner. But if one of Trump’s appointees does cast the deciding vote against the former president, it will be difficult for the rest of the country to question the legitimacy of that ruling.

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