I've been thinking about all of these lawsuits to exclude Trump from the ballot under Section 3 of the Fourteenth Amendment. I mentioned before that I think Trump should be excluded if you take that constitutional provision seriously, but I also think that the odds of him being excluded by the Courts are really low.
But here is a scenario in which the Court would allow exclusion: It has been clear for a while that anti-Trump Republicans are largely anti-Trump because, unlike most Republicans under the spell of MAGA, they can see that Trump is pretty toxic with the overall electorate. Those anti-Trump Republicans are a tiny minority of the party, just enough to give Pence, Christie, and Hutchinson a combined 9.1% in polls of Republican primary voters, but are viewed as heretics by the other 90% of Republicans. The anti-Trump Republicans, however, tend to be more educated, more well off, and more connected with traditional Republican elite than the MAGA masses. I'm thinking of people like George Will.
Who else fits that profile? Many of the Republican appointees to the Supreme Court. What if a few conservative Justices also believe that Trump can't win in the general election but also that Biden is so weak that almost anyone else would deliver the presidency back to the Republicans? Actually it would only take two Justices for this to work. It wouldn't be Thomas, who has his feet firmly planted in the MAGA world via his wife, or Alito, who writes and talks like he suffers from serious Fox News Brain Rot. But the other conservatives, Gorsuch, Kavanaugh, Barrett, and Roberts, could all plausibly have those kind of private thoughts. With the three liberal Justices , they could get five votes to rule that Trump is excluded from office under the insurrection clause in an appeal of any of the current cases to have Trump excluded from the ballot.
In fact, I could see that line of reasoning particularly appealing to Roberts. If his Court, with its solidly conservative majority, were to rule that way, it could be used as evidence that Justices are above politics, while still increasing the chances that Republicans win back the presidency.
I have no idea if Roberts, or any other conservative Justice, thinks that way. And it probably is unlikely to be true. But I think the scenario is at least plausible. People have occasionally remarked that many Republican leaders don't want to be in their current situation, tethered to a crazy candidate like Trump with a long list of criminal charges, and a solid majority of Americans who hate him. Many have noted that Republicans would not be in this mess if they had just voted to convict Trump in his last impeachment. But they were too cowardly to risk their neck to do it. Having the Justices do it for them would be the perfect way out. They do not have to face Republican primary voters to be reelected.
