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Every nation needs parties of the left and the right, but America’s conservative party has collapsed—and its absence will undermine the recovery of American democracy even when Donald Trump is gone.

First, here are four new stories from The Atlantic:

So much for “learn to code” Where the new identity politics went wrong The origins of the socialist slur The coming attack on an essential element of women’s freedom

The Danger That Will Outlast Trump

The American right has been busy the past few days. The Republicans in Congress are at war with one another over a possible government shutdown that most of them don’t really want. Representative Paul Gosar of Arizona (channeling the warden from The Shawshank Redemption, apparently) railed about “quislings” such as the “sodomy-promoting” Mark Milley, the chairman of the Joint Chiefs of Staff, and said he should be hanged. Gosar, of course, was merely backing up a similar attack from the likely GOP presidential nominee Donald Trump, who over the weekend floated the idea of executing Milley and swore to use government power to investigate a major television network for “treason.”

Normally, this is the kind of carnival of abominable behavior that would lead me to ask—again—how millions of Americans not only tolerate but support such madness.

But today I’m going to ask a different question: Is this the future of “conservatism”? I admit that I am thinking about this because it’s also one of the questions I’m going to tackle with my colleagues David Frum, Helen Lewis, and Rebecca Rosen on Thursday in Washington, D.C., at The Atlantic Festival, our annual two-day gathering where we explore ideas and cultural trends with a roster of stellar guests.

Slightly more than a year ago, I tried to think through what being a conservative means in the current era of American politics. I have not been a Republican for several years, but I still describe myself as a conservative: I believe in public order as a prerequisite for politics; I respect tradition, and I am reluctant to acquiesce to change too precipitously; I think human nature is fixed rather than malleable; I am suspicious of centralized government power; I distrust mass movements. To contrast these with progressivism, I think most folks on the left, for example, would weigh social justice over abstract commitments to order, be more inclined to see traditions as obstacles to progress, and regard mass protests as generally positive forces.

This is hardly an exhaustive list of conservative views, and some on the right have taken issue with my approach. A young writer at National Review named Nate Hochman took me to task last year for fundamentally misunderstanding modern conservatism. Mr. Hochman, however, was apparently fired this summer from the Ron DeSantis campaign after he produced a campaign video that used Nazi symbolism, which suggests to me that I do, in fact, understand the modern conservative movement better than at least some of my critics might admit.

In any case, the immediate problem America faces is that it no longer has a center-right party that represents traditional conservatism, or even respects basic constitutional principles such as the rule of law. The pressing question for American democracy, then, is not so much the future of conservatism but the future of the Republican Party, another question our panel will discuss—and one that continually depresses me.

The United States, like any other nation, needs political parties that can represent views on the left and the right. The role of the state, the reach of the law, the allocation of social and economic resources—these are all inevitable areas of disagreement, and every functioning democracy needs parties that can contest these issues within the circumscribed limits of a democratic and rights-respecting constitution. Today’s Republican Party rarely exhibits such commitments to the rule of law, constitutionalism, or democracy itself.

The current GOP is not so much conservative as it is reactionary: Today’s right-wing voters are a loose movement of various groups, but especially of white men, obsessed with a supposedly better past in which they were not the aggrieved minority they see themselves as today. These reactionary voters, as I have written recently, are reflexively countercultural: They reject almost everything in the current social and political order because everything around them is the product of the hated now that has displaced the sacred then.

(Although many of my colleagues in academia and in the media see Trumpism as fascism, I remain reticent to use that word … for now. I think it’s inaccurate at the present time, but I also believe the word has been overused for years and people tend to tune it out. I grant, however, that much of the current GOP has become an anti-constitutional leader cult built around Trump—perhaps one of the weakest and unlikeliest men ever in history to have such a following—and could become a genuinely fascist threat soon.)

America needs an actual conservative party, but it is unlikely to produce one in the near future. The movement around Trump will come to an end one way or another; as the writer Peter Sagal noted in The Atlantic after interviewing former members of various cults, “the icy hand of death” will end the Trump cult because it is primarily a movement of older people, and when they die out, “there will be no one, eventually, to replace them.” Although the cult around Trump will someday dissolve, the authoritarians his movement spawned will still be with us, and they will prevent the formation of a sensible center-right party in the United States.

Too many Americans remain complacent, believing that defeating Trump means defeating the entire threat to American democracy. As the Atlantic contributor Brian Klaas wrote yesterday, Trump’s threats on social media against Milley should have been the biggest story in the nation: “Instead, the post barely made the news.” Nor did Gosar’s obscene pile-on get more than a shrug.

Meanwhile, the New York Times opinion writer Michelle Cottle today profiled Ohio Senator J. D. Vance, a man who has called his opponents “degenerate liberals” and who is so empty of character that even Mitt Romney can’t stand him. Cottle, however, noted Vance’s cute socks, and ended with this flourish: “Mr. Trump’s Republican Party is something of a chaotic mess. Until it figures out where it is headed, a shape-shifting MAGA brawler who quietly works across the aisle on particular issues may be the best this party has to offer.”

Something of a mess? That’s one way to put it.

And what about Fox News, the source of continual toxic dumping into the American political ecosystem? “Fox News,” the Washington Post columnist Megan McArdle said yesterday, “does not have nearly as much power over viewers’ minds as progressives think. I am not cutting Fox any slack for amplifying Trump’s election lie nonsense. But I also doubt that it made that much of a difference.” Having traveled the country giving talks about misinformation and democracy for years, and hearing the same stories so many times of people who now find it impossible to talk to their own parents, I have no such doubts.

If Trump wins in 2024, worries about Fox’s influence or reflections on Vance’s adorable socks will seem trivial when Trump unleashes his narcissistic and lawless revenge on the American people. But even if he does not win, America cannot sustain itself without a functional and sane center-right party. So far, the apathy of the public, the fecklessness of the media, and the cynicism of Republican leaders mean that no such party is on the horizon.

Related:

The end will come for the cult of MAGA. Trump floats the idea of executing Joint Chiefs Chairman Milley.

Today’s News

The Supreme Court ruled against an attempt by Alabama Republicans to retain a congressional map with only one majority-Black district. The Federal Trade Commission and 17 states are suing Amazon in a broad antitrust lawsuit that accuses it of monopolistic practices. An increasing number of Senate Democrats is calling for Senator Bob Menendez to resign from Congress following his federal indictment.

Evening Read

Franco Pagetti / VII / Redux

How We Got ‘Democracy Dies in Darkness’

By Martin Baron

I should not have been surprised, but I still marveled at just how little it took to get under the skin of President Donald Trump and his allies. By February 2019, I had been the executive editor of The Washington Post for six years. That month, the newspaper aired a one-minute Super Bowl ad, with a voice-over by Tom Hanks, championing the role of a free press, commemorating journalists killed and captured, and concluding with the Post’s logo and the message “Democracy dies in darkness.” The ad highlighted the strong and often courageous work done by journalists at the Post and elsewhere—including by Fox News’s Bret Baier—because we were striving to signal that this wasn’t just about us and wasn’t a political statement …

Even that simple, foundational idea of democracy was a step too far for the Trump clan. The president’s son Donald Trump Jr. couldn’t contain himself. “You know how MSM journalists could avoid having to spend millions on a #superbowl commercial to gain some undeserved credibility?” he tweeted with typical two-bit belligerence. “How about report the news and not their leftist BS for a change.”

Read the full article.

More From The Atlantic

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Culture Break

Wilford Harwood / Hulu

Read. In Orphan Bachelors, Fae Myenne Ng explores the true cost of the Chinese Exclusion era through an aching account of her own family.

Watch. The Hulu series The Other Black Girl dramatizes the pains of managing Afro-textured hair—and other people’s perceptions of it.

Play our daily crossword.

P.S.

I’m off to The Atlantic Festival, so I’ll be brief today. But I’ll be back on Friday to talk about Barry Manilow, whom I saw this past week in Las Vegas as he broke Elvis Presley’s record for performances at the venerable Westgate Las Vegas Resort & Casino. If you’re, ah, ready to take a chance again, you might enjoy it, even now, especially as we’ll be talking about the old songs. All the time, until daybreak.

I’m sorry. I promise: no more Manilow puns. See you in a few days.

— Tom

Katherine Hu contributed to this newsletter.

When you buy a book using a link in this newsletter, we receive a commission. Thank you for supporting The Atlantic.

For years after World War II, the “liberal consensus”—the New Deal idea that the federal government had a role to play in regulating business, providing a basic social safety net, and promoting infrastructure—was a true consensus. It was so widely popular that in 1950, the critic Lionel Trilling wrote of the United States that “liberalism is not only the dominant but even the sole intellectual tradition.”

But the Supreme Court’s 1954 Brown v. Board of Education decision declaring segregation in public schools unconstitutional tied the federal government to ensuring not just economic equality, but also civil rights. Opponents of the liberal consensus argued that the newly active federal government was misusing tax dollars taken from hardworking white men to promote civil rights for “undeserving” Black people. The troops President Dwight Eisenhower sent to Little Rock Central High School in 1957, for example, didn’t come cheap. The government’s defense of civil rights redistributed wealth, they said, and so was virtually socialism.

[Read: An attempt to resegregate Little Rock, of all places]

This intersection of race and economics was not new to the second half of the 20th century. It reached back into the past to resurrect an argument made by former Confederates during the Reconstruction years to overturn federal protection of Black rights after the Civil War.

Some of today’s Republicans are in the process of making that argument reality. Their insistence that all their opponents are socialists goes hand in hand with their effort to suppress Black and brown voting. When former President Donald Trump insists that the country has fallen to communism and “Marxists,” what he’s really saying is that a government in which racial minorities have a say is illegitimate.

The accusation of “socialism” had sharp teeth in the 1950s, as Americans recoiled from the growing influence of the Soviet Union and the rise of Communist China. But Republicans’ use of the word typically had little to do with actual, Bolshevik-style socialism. The theory that the people would rise up and take control of the means of production has never been popular in the United States. The best a Socialist Party candidate has ever done in an American presidential election was when Eugene V. Debs won about 6 percent of the popular vote in 1912.

Rather, in the United States, the political charge of socialism tended to carry a peculiar meaning, one forged in the white-supremacist backlash to Black civil rights in the 1870s.

During the Civil War, the Republicans in charge of the government both created national taxation and abolished legal slavery (except as punishment for crime). For the first time in U.S. history, voting in federal elections had a direct impact on people’s pocketbooks. Then, in 1867, Congress passed the Military Reconstruction Act, extending the vote to Black men in the South. White southerners who hated the idea of Black people using the vote to protect themselves started to terrorize their Black neighbors. Pretending to be the ghosts of dead Confederate soldiers, they dressed in white robes with hoods to cover their faces and warned formerly enslaved people not to show up at the polls.

But in 1870, Congress created the Department of Justice to enable the federal government to protect the right of Black men to vote. Attorney General Amos Akerman oversaw the prosecution of more than 3,000 members of the Ku Klux Klan, winning more than 1,000 convictions. Meanwhile, Congress passed laws to protect Black voting.

Suddenly, it was harder for white southerners to object to Black rights on racial grounds. So they turned to a new argument, one based in economics.

They did not want Black men voting, they said, because formerly enslaved people were poor, and they would vote for leaders who promised to build things such as roads and hospitals. Those public investments could be paid for only with tax levies, and most of the people in the South with property after the war were white. Thus, although the infrastructure in which the southern legislatures were investing would help everyone, reactionaries claimed that Black voting amounted to a redistribution of wealth from white men to Black people, who wanted something for nothing.

Black voting was, one magazine insisted, “socialism in South Carolina.”

This argument that poor Black workers were dangerous socialists offered justification for former Confederates to block their Black neighbors from the polls, to read them out of American society, and ultimately to lynch them. It’s a peculiarly American version of “socialism,” and it might have been a historical anomaly had a small group of business leaders and southern racists not resurrected it in the 20th century as part of a deliberate effort to destroy the liberal consensus.

After World War II, most Republicans joined Democrats in believing that the federal government had to oversee business regulation, welfare programs, and infrastructure. They knew what businessmen would do to the economy unless they were checked; they had seen people homeless and hungry during the Depression.

And they scoffed at the notion that the New Deal system was a bad idea. They looked around at their homes, at their candy-colored cars that they drove on the new interstate highways built under what was then the biggest public-works project in U.S. history, and at their union-boosted paychecks in a nation with its highest gross domestic production ever, and they dismissed as a radical fringe the people trying to undermine this wildly successful system.

But the federal protection of civil rights added a new element to the liberal consensus that would threaten to tear it apart. Between 1967 and 1977, a North Carolina billboard urged people in “Klan Country” to “help fight Communism & Integration.”

The stagflation of the ’70s pushed middle-class Americans into higher tax brackets just when they needed their income most, and helped spread the sense that white tax dollars were being siphoned off to help racial minorities. As towns and governments tried to make up their declining funds with higher property taxes, angry property owners turned against the government. Republicans courted white workers by painting the Democrats as a party of grievance and special interests who simply wanted to pay off lazy Black supporters, rather than being interested in the good of America as a whole.

In 1976, former California Governor Ronald Reagan ran for president with the story of a “welfare queen” from the South Side of Chicago—code words for “Black”—who lived large on government benefits she stole. “She has 80 names, 30 addresses, 12 Social Security cards and is collecting veteran’s benefits on four non-existing deceased husbands,” Reagan claimed. “And she is collecting Social Security on her cards. She’s got Medicaid, getting food stamps, and she is collecting welfare under each of her names.” There was such a woman, but she was a dangerous criminal rather than a representative welfare recipient. Nonetheless, the story illustrated perfectly the idea that government involvement in the economy handed tax dollars to allegedly  undeserving Black Americans.

Reagan suggested a solution to such corruption. In August 1980, he spoke to voters in Philadelphia, Mississippi, 16 years and just a few miles from where the civil-rights workers James Chaney, Andrew Goodman, and Michael Schwerner had been found murdered by members of the Ku Klux Klan as they registered Black voters during 1964’s Freedom Summer. There, Reagan echoed the former Confederates during Reconstruction: “I believe in states’ rights,” he said.

Reagan’s campaign invited voters to remember a time before Black and brown voices and women began to claim equal rights. His campaign passed out buttons and posters urging voters to “make America great again.”

Voters put Reagan in the White House, where his administration cut taxes and slashed spending on public welfare programs (while pouring money into defense spending, and tripling the national debt). In the name of preventing socialism, those programs began the process of hollowing out the middle class.

In the years since 1981, wealth has moved dramatically upward. And yet, the language that linked socialism and minority voting never ceased to escalate.

Talk hosts such as Rush Limbaugh insisted that socialism was creeping through America at the hands of Black Americans, “feminazis,” and liberals. After its founding in 1996, the Fox News Channel joined the chorus of those who insisted that their political opponents were socialists trying to wreck the country. Republicans insisted that Barack Obama was a full-fledged socialist, and in 2018, Trump’s White House Council of Economic Advisers used the word socialism 144 times in a 72-page report attacking Democratic politicians. Trump’s press release for the report read: “Congressional Democrats Want to Take Money From Hardworking Americans to Fund Failed Socialist Policies.”

There is a long-standing fight over whether support for the modern-day right is about taxes or race. The key is that it is about taxes and race at the same time: Since Reconstruction, white supremacists have argued that minority voting means socialism, and that true Americans stand against both. In recent history, that argument has led Republican-dominated state legislatures to make voting harder for people of color, and to rig the system through gerrymandering. Three years ago it led Trump and his supporters to try to overturn the results of a presidential election to keep their opponents out of power. They believed, and insist they still believe, that they had to destroy the government in order to save it.

This article is adapted from Democracy Awakening: Notes on the State of America.

For the past half century, many women in America have enjoyed an unprecedented degree of freedom and legal protection, not because of Roe v. Wade or antidiscrimination laws but because of something much less celebrated: “no fault” divorce. Beginning in the early 1970s, no-fault divorce enabled millions of people, most of them women, to file for divorce over “irreconcilable differences” or the equivalent without having to prove misconduct by a spouse—such as adultery, domestic violence, bigamy, cruelty, abandonment, or impotence.

But now conservative politicians in states such as Texas and Louisiana, as well as a devoutly Catholic husband who tried to halt his wife’s divorce efforts in Nebraska, are attacking no-fault divorce. One of the more alarming steps taken in that direction came from the Texas Republican Party, whose 2022 platform called on the legislature to “rescind unilateral no-fault divorce laws and support covenant marriage.” Given the Republican Party’s control of the offices of governor, secretary of state, and attorney general, and both chambers of the state legislature, Texas has a chance of actually doing it.

Until 1857, divorce in England—whose ecclesiastical laws formed the basis of divorce laws in most American colonies outside New England—was available only through an act of Parliament. A total of 324 couples managed to secure one; only four of those were initiated by women. Husbands could divorce their wives based solely on adultery, but women had to prove additional aggravating circumstances. Proof of brutality, rape, or desertion was considered insufficient to support a divorce. Not until 1801 did a woman, Jane Addison, finally win a divorce based on adultery alone.

[Helen Lewis: The conservative case for liberalizing divorce]

Divorce in the American colonies was often decided by governors, while colonial courts required the innocent spouse to prove marital fault by the other, making divorce virtually nonexistent. Married women were mostly bound by laws of “coverture,” which, in the words of the English jurist William Blackstone, meant that “by marriage, the husband and wife are one person in the law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.” As recounted by the historian Catherine Allgor, American women had no right to enter into contracts or independently own property, including their own wages and “the clothes on their backs.” Mothers lacked basic parental rights, too, “so that if a wife divorced or left a husband, she would not see her children again.”

State standards for divorce varied, including the number of times a man could assault his wife before divorce was allowed. (Marital rape was not illegal in all 50 states until 1993.) In 1861, a judge in New York City ruled that “one or two acts of cruel treatment” were not sufficient grounds to grant a woman a divorce, even after her husband beat her unconscious with a piece of wood during a fight over the family dog sleeping in their bed. The judge wrote that “the wife should not seek on slight provocation to dissolve that sacred tie which binds her to her husband for life, for better or worse.” As if the privacy intrusions of a trial were not enough, newspapers routinely publicized divorce cases, often blaming the woman without mentioning her abuse. Norms of “regular marriage” even made their way into national politics when, two months before the Civil War began, President Abraham Lincoln invoked the analogy in a speech accusing the South of wanting a “‘free love’ arrangement” based on “passional attraction” rather than fidelity to the Union.

Against this backdrop, conservative commentators today claim that no-fault-divorce laws destroy the sanctity of marriage and disfavor men. The blogger and Daily Wire host Matt Walsh tweeted this year that no-fault divorce should be abolished. He once tweeted that “no fault divorce grants one person the ability to break the contract without the consent of the other. What kind of contract is that?” The right-wing YouTube personality Steven Crowder has argued that “no-fault divorce … means that in many of these states if a woman cheats on you, she leaves, she takes half. So it’s not no-fault, it’s the fault of the man.” Elsewhere, he claimed, “If you’re a woman that comes from meager means, and you want to get wealthy—you’ve never worked, you didn’t get a degree, you have no skill set, but you’re good-looking—your best path to victory is simply to marry a man, leave him, and take half.”

Republican Senator J. D. Vance of Ohio picked up the argument on the campaign trail last September, stating, “One of the great tricks that I think the sexual revolution pulled on the American populace … is the idea that, like, ‘Well, okay, these marriages were fundamentally, you know, they were maybe even violent, but certainly they were unhappy. And so getting rid of them and making it easier for people to shift spouses like they change their underwear, that’s going to make people happier in the long term.’”

[Olga Khazan: The high cost of divorce]

Except no-fault-divorce laws did make women happier. Prior to California’s Family Law Act of 1969, which was signed into law by then-Governor Ronald Reagan, all states followed a fault-based system in which divorces were granted very sparingly under strict criteria. Women who wanted out of a bad marriage had little choice but to stay, because most were family caregivers who would wind up destitute without a judicial division of assets. The tight legal controls also led to highly adversarial proceedings and regularized lying in order to secure a divorce decree. Estranged couples fled to more liberal states known as “divorce colonies” simply to end a marriage. It was not until 1949 that divorce was legal at all in South Carolina. Although many states still retain the option of fault-based grounds for divorce, which arguably can carry the benefits of avoiding mandatory separation periods and a greater share of marital assets for the spouse who files for divorce, the last to abandon mandatory proof of fault was New York, in 2010. Late-stage opponents responsible for New York’s delay in the movement included the Roman Catholic Church and some women’s-rights groups fearful that no-fault divorce would diminish women’s leverage to obtain favorable alimony or child-support awards.

No-fault divorce managed to meaningfully shift the power balance in marriage relationships: Women now had the option of leaving without their husband’s permission. From 1976 to 1985, states that adopted no-fault divorce saw their overall domestic-violence rates plummet by a quarter to one-half, including in relationships that did not end in divorce. The number of women murdered by “intimates” declined by 10 percent. Female suicide rates also fell immediately in states that moved to unilateral divorce, a downward trend that continued for the next decade. Researchers have theorized that many women “derive a life-preserving benefit from divorce,” because under the threat of divorce, “the husband … behaves himself, thereby reducing the incidence of domestic violence and spousal homicide.”

Federal law allows for state legislatures to easily roll back women’s ability to initiate divorce without spousal consent or proof of abuse. Although the Supreme Court recognized in 2015’s Obergefell v. Hodges that state laws must yield to federal rights protecting same-sex marriage, nothing in the Constitution or the Court’s precedent clearly prevents states from reversing no-fault divorce.

The writer and attorney Beverly Willett, an opponent of no-fault divorce, has argued that “unilateral no-fault divorce clearly violates the 14th Amendment,” supposedly depriving defendants in divorce cases “of life, liberty, and property without due process of law.” This argument has it exactly backwards. There is no express “right” to marriage in the Constitution. Although troubling vestiges of legal coverture still linger in American law, women these days are not considered legal “property” to which a man’s constitutional due-process rights could conceivably attach.

As for due-process protections for liberty (which the Supreme Court has described as “not confined to mere freedom from bodily restraint,” but instead inclusive of “the full range of conduct which the individual is free to pursue”), that right more compellingly protects the person seeking to end a marriage—and to do so without having to prove to the government that she deserves it.

There’s an old saying that sometimes it is more important for the law to be certain than to be right. Certainty allows people to plan their actions knowing what the rules are going to be.

Nowhere is this principle more urgent than when it comes to the question of whether Donald Trump’s efforts to subvert the 2020 election results have disqualified him from becoming president again. As cases raising the question have begun working their way through the courts in Colorado, Minnesota, and elsewhere, the country needs the Supreme Court to fully resolve the issue as soon as possible.

Eminent constitutional-law scholars and judges, both conservative and liberal, have made strong cases that Trump is disqualified from being president again under Section 3 of the Fourteenth Amendment, which bars from office those who have taken an oath to defend the Constitution and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Some of those scholars are professed originalists—as are many of the Supreme Court’s conservative justices—and to make their cases, they have analyzed what they say is the “original public meaning” of this provision. Other conservative and liberal scholars have concluded otherwise about the clause’s meaning, or at least raised serious doubts about whether and how these provisions apply to Trump.

Among the unresolved issues are whether the disqualification provision applies to those who formerly served as president, rather than in some other office; whether Congress must pass legislation authorizing the Department of Justice to pursue a civil lawsuit in order to bar Trump; whether Trump “engaged” in “insurrection” or “rebellion” or at least gave “aid or comfort” to “the enemies thereof.” Unsurprisingly, given that this provision emerged in response to the Civil War in the 1860s, there is virtually no modern case law fully resolving these issues, and many enormous questions remain on which reasonable minds disagree—for example, who would enforce this provision, and how.

Those are the legal questions. The political questions are, in some ways, even more complicated, and at least as contested. If Trump is disqualified on Fourteenth Amendment grounds, some believe that this would become a regular feature of nasty American politics. Others worry that significant social unrest would result if the leading candidate for one of the country’s major political parties were to be disqualified from running for office rather than giving voters the final say on the issue.

[David Frum: The Fourteenth Amendment fantasy]

All of these questions, however, are somewhat beside the point. This is not merely an academic exercise. Trump, right now, is already being challenged as constitutionally disqualified, and these issues are going to have to be resolved, sooner or later. My point is that sooner is much better than later.

A number of legal doctrines could lead courts to kick this issue down the road for some time. Maybe the provision applies not to primaries, but only to candidates in a general election. Maybe voters don’t have standing to sue, because they can’t show a particularized injury. Maybe this is a political question to be decided by the political branches, such as Congress, rather than by the judiciary.

But courts should not dally, because judicial delay could result in disaster. Imagine this scenario: Election officials and courts take different positions on whether Trump’s name can appear on the ballot in 2024. The Supreme Court refuses to get involved, citing one of these doctrines for avoiding assessing the case’s merits. Trump appears to win in the Electoral College while losing the popular vote. Democrats control Congress, and when January 6, 2025, arrives and it is time to certify the vote, Democrats say that Trump is ineligible to hold office, and he cannot serve.

As I and my co-authors argue in our report on how to have a fair and legitimate election in 2024, such a scenario raises the possibility of major postelection unrest. The country would have one political party disqualifying the candidate of the other party from serving—after that candidate has apparently won the results of a fair election.

The Supreme Court is the only institution that can definitively say what the law is in this case, and it should not wait once a case reaches its doorstep. Think of Republican voters and candidates soon to participate in the primary process. They, and everyone else, deserve to know whether the leading candidate is actually eligible to serve in office.

A Supreme Court decision to disqualify Trump from the ballot would obviate the need for Congress to resolve the question on January 6. Trump would not be allowed to run. In contrast, a judicial decision that Trump is not disqualified would make it very difficult politically for Democrats in Congress to try to reject Trump anyway after a 2024 victory.

[J. Michael Luttig and Laurence H. Tribe: The Constitution prohibits Trump from ever being president again]

How the Supreme Court would—or should—resolve the question of Trump’s disqualification on the merits is far from clear. There is no question that Trump tried to subvert the results of the 2020 election, using pressure, lies, and even the prospect for violence to overturn Joe Biden’s victory. Trump so far has faced no accountability for his actions: The Senate did not muster the two-thirds vote in 2021 to convict him after his second impeachment, a step that could have led to his disqualification under Congress’s impeachment-related powers. The federal and Georgia cases against Trump for his alleged election interference may yet go to trial, but whether verdicts will ever be reached is far from certain. In any event, even a guilty verdict would not disqualify Trump. If there is going to be any accountability for Trump’s actions in 2020, it might have to come from this disqualification provision. A reading of the Fourteenth Amendment in this way helps protect our democracy.

But serious legal questions continue to dog any use of Section 3 of the Fourteenth Amendment. My general view is that to avoid the overall criminalization of politics, reserve prosecuting politicians for instances when both the law and the facts are clear; marginal cases are best left to other remedies. Disqualification, of course, is not a criminal procedure, but borrowing this principle from the criminal context recommends caution here too. In close cases, the voters should get to decide at the ballot box.

The pressure to disqualify Trump is only going to grow until there’s a final resolution of the question. When this issue reaches the Supreme Court, the country will need the Court to decisively resolve it—or risk chaos later on.