Before Trump, an illegitimate Supreme Court stands in the way of democracy

In his annual year-end report for 2023, Chief Justice John Roberts came out and said it: The high court, and the American judiciary in general, has a big looming problem in front of it:

Artificial intelligence.

After the year of ChatGPT and a fast-moving revolution in AI, Roberts said any advantages in quicker legal research should be weighed against the clear potential for fraud and the broader moral risks of relying too much on technology. “Legal determinations often involve gray areas that still require application of human judgment,” the chief justice wrote. “I predict that human judges will be around for a while.”

Maybe, but Roberts’ year-ender was less newsworthy for what it said than for what it didn’t say. Somehow, the jurist didn’t think it was worth mentioning that 2023 was arguably the worst year for ethical scandal in the U.S. Supreme Court’s 234-year history — especially, although not limited to, reports of billionaires lavishing luxury travel and other perks on Justice Clarence Thomas for years.

Now, as 2024 begins, the growing legitimacy crisis of America’s highest court is steaming toward a giant political iceberg — at least two major decisions about whether states can bar the likely GOP presidential nominee Donald Trump from the ballot over the Jan. 6, 2021, insurrection, and his claim of immunity from criminal charges. These rulings, coming when public trust in the high court is at a record low, will show us whether the ailing U.S. democracy still has a pulse, months before a possibly contested election, and the threat of a Trump dictatorship in 2025.

For the chief justice to try to change the Supreme Court conversation to something less controversial — Hey, humans are better than robots, amirite? — feels like the captain of the Titanic obsessing over tomorrow’s menu or the temperature in the cabins rather than steering away from that giant white thing in front of the boat. But I also think the broader political establishment is also in denial about the coming crisis at SCOTUS, and how that will affect voters.

The court’s central role in 2024 became clear just three days into the new year when Trump and his campaign asked the justices to overturn December’s ruling by the Colorado Supreme Court to bar the 45th president from the March GOP primary. It found that his ties to 2021’s Capitol Hill mayhem render him ineligible under the 14th Amendment to the Constitution, which prevents insurrectionists from holding federal office.

The court is also expected to ultimately decide a pressing matter now before Washington, D.C’s U.S. Court of Appeals: Trump’s claim of total criminal immunity for any actions while president, aimed at dismissing his federal felony indictment for his role in seeking to overturn his 2020 election defeat even before the case comes to trial. Trump’s legal argument here seems absurd; as special counsel Jack Smith has noted, this theory suggests that a president could murder his political opponents and there’d be no legal path for stopping him or punishing him.

But the case of Trump, the insurrection, and the 14th Amendment is a lot more complicated, both legally and politically. No one disputes the objective rules that bar millions of Americans from seeking the White House — those under age 35, the foreign-born, or two-term presidents — but the insurrection language in Section 3 of the 14th Amendment is more subjective and less clear. The Maine secretary of state has agreed with the Colorado court in barring Trump, but other states have rejected the constitutional argument.

Many Americans, myself included, believe the events of Jan. 6 were an insurrection, aimed at blocking the peaceful transfer of presidential power, and that Trump — who urged his followers to come to Washington, rallied them in a speech, and told them to march on the U.S. Capitol — engaged in it. But it’s also true that Trump has not been formally charged with insurrection, let alone convicted, and that his February 2021 Senate impeachment trial on similar charges resulted in an acquittal. Sorting this out will be nine justices who might claim to be umpires calling balls and strikes, but who in reality might prove susceptible to the less-legal-than-political argument that Trump’s future should be decided by voters, not judges and state functionaries.

Assuming that no other states move to block Trump, the practical consequences could be small. In 2016 and again in 2020, Trump received only one Electoral College vote from Colorado and Maine. But the impact on America’s fragile psyche will be huge. If the Supreme Court upholds Colorado’s and Maine’s position, it will confirm the suspicions of the Trumpist masses that elite institutions are thwarting the populist will. But a ruling to reinstate Trump by somehow denying that POTUS 45 was a Jan. 6 insurrectionist will make the other half wonder if the words in the Constitution mean anything.

» READ MORE: The Supreme Court ethics mess is today’s Watergate. Let’s treat it that way. | Will Bunch

Indeed, I have a hard time imagining that Justice Ketanji Brown Jackson, already the court’s liberal lioness after less than two years on the bench, will rule to water down the Reconstruction-era 14th Amendment. That’s unfortunate for Roberts because I agree with the legal analysts who suspect the chief justice would love to engineer a unanimous ruling — as happened in the most famous case involving presidential power, when an 8-0 SCOTUS ordered Richard Nixon to turn over his White House tapes in 1974. Knowing the five other conservative justices are quite likely to rule in favor of Trump, Roberts will probably try to woo at least one of the liberal jurists — Elena Kagan, perhaps? — to join them.

But seeking consensus isn’t really Roberts’ biggest problem — or America’s. No, the biggest problem is the ethical morass around Justice Thomas. Throughout 2023, journalists at ProPublica chronicled the perks worth hundreds of thousands of dollars — a forgiven RV loan, buying his mom’s house, private school tuition, luxury vacations, and jet travel — that the court’s longest-serving justice has received from right-wing billionaires.

ProPublica’s reporting made a compelling case that billionaires like Harlan Crow wanted Thomas to have an opulent lifestyle so that the Supreme Court’s most reliable conservative vote wouldn’t quit to get rich in the private sector. Wielding that vote to help a tainted Republican win the 2024 election would be the ultimate return on their investment.

But it gets even worse. We’ve also learned a lot over the last three years about the role the justice’s wife, the conservative activist Ginni Thomas, also played in those efforts to overturn the 2020 election, including lobbying officials in key states to deny electoral votes to President Joe Biden. Despite this massive, glaring conflict of interest, Thomas has so far mostly refused to recuse himself from cases connected to the 2020 election controversies — and there’s little reason to expect the frequently defiant justice to begin doing so now. But his participation would raise very real questions about the legitimacy of any ruling — not to mention the legitimacy of the Supreme Court and, thus, U.S. democracy.

This could mean the shipwreck of the American Experiment could come months before Nov. 5, 2024, or Jan. 20, 2025, the two dates democracy doomers have long circled on their calendars. I have little doubt that whatever the Supreme Court — which already has a near-record-low public trust of just 41% — decides will deepen the broader loss of trust in our institutions like Congress or the media or higher education. Despair might depress voter turnout, which could be very good news for Trump and his “I alone can fix it” plans for autocratic government.

But it doesn’t have to be this way. I would urge voters who are infuriated by the current sorry state of the Supreme Court not to get discouraged but to get more involved. We’ve seen this before, in the 2022 midterms, when rage over the court’s reversal of the Roe v. Wade abortion rights precedent turned out young voters and women in ways Biden’s weak-tea defense of democracy probably can’t.

Those same voters will likely be more furious than ever at the high court in 2024, and Democrats need to use that to their advantage. They should make major Supreme Court reforms — as well as the impeachment of Justice Thomas if given a 2025 House majority — major and heavily promoted parts of a party platform for November. A pro-democracy movement might thrive with dreams of clear sailing for a newly rechristened Supreme Court if we can somehow navigate the ice floes of 2024.

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