Will the SCOTUS disqualify Trump?

I’ve spent a lot of time in the last couple of weeks reviewing the record in Trump v. Anderson, which is going to be argued at the SCOTUS twelve days from today. I want to make a couple of points ahead of that momentous occasion.

The purely formal legal argument for disqualifying Trump under Section 3 of the 14th amendment is overwhelmingly strong. Lots of questions of constitutional law are by their nature deeply ambiguous, because for all sorts of reasons it can be very difficult to apply the words of a centuries old document to contemporary events. This isn’t one of those questions. It’s no more ambiguous than the question of whether a 31-year-old is eligible to be elected president of the United States, and for exactly the same reason: the plain text of the Constitution, as a reflection of what the people who drafted and ratified that document intended to do and say, is unambiguous on the question.

Donald Trump’s actions between November 2020 and January 2021 are basically a perfect example of what Section 3 contemplates as disqualifying behavior in regard to presidential electoral eligibility.

So the question is this: are at least five members of the SCOTUS going to follow the law here, or not?

I think the answer to that question is, “possibly.”

Here’s why: it’s possible to gin up (barely) facially non-frivolous arguments for the petitioner (Trump) in this case, and if legal realism teaches us anything is that if you can come up with any sort of non-frivolous argument in this sort of hyper-politically charged case, all bets as a practical matter are off.

This is certainly true.

But.

I don’t think five members of the SCOTUS necessarily want to see Donald Trump re-elected. If that’s the case, well then the Constitution of the United States offers them an extraordinarily straightforward excuse for keeping that from happening.

Yeah I get it; it’s extremely complicated on every political and social and institutional level. What it’s NOT complicated on is, if I can use a very old-fashioned term, is on the level of the law.

We’ll see.