President Trump recently claimed that methods exist for him to serve more than two terms. The overarching motivation for Trump to remain president is to avoid having to defend himself in court against civil and criminal offenses that could be brought against him once he becomes a private citizen. But for Trump to succeed, he will need the US Supreme Court to rule in his favor in cases that determine whether he can remain in power.
In my view, the empirical evidence showing that justices have voted along ideological lines in many cases creates uncertainty about whether the Supreme Court would prevent Trump from overturning democracy by staying in power past the end of his second term. The key swing justices, Chief Justice John Roberts and Justice Amy Coney Barrett, can eliminate this uncertainty now by stating unequivocally that in accordance with the 22nd amendment, Trump must leave office in January 2029, at the end of his second term.
Historically, Judge Richard Posner argues that in Supreme Court cases, because justices do not share a commitment to a logical premise for making decisions, their decisions must be ideological because they cannot be anything else. Justices who claim to make decisions based on “the law” often appear to interpret the law to fit with their ideological preferences.
Evidence supports this view. For example, following the retirement of Justice John Paul Stevens in 2009, the ideological divide in the Court noticeably grew. Turning specifically to business cases, the Court has become much more polarized along ideological voting lines—liberal justices have strong preferences to vote against business and conservative justices have strong preferences to vote in favor of business—under Chief Justice Roberts than it was under former Chief Justice William Rehnquist. And, as is well known, the Court voted 6-3 along conservative and liberal ideological lines in the Dobbs case to overturn the precedent set by the Roe and Planned Parenthood cases, which had previously established a constitutional right to an abortion under the Due Process Clause of the 14th Amendment, and in the Trump case to grant presidents broad immunity from prosecution for crimes they commit in office.
As a result, the public is not convinced by Justice Coney Barrett’s claim that the court is “not comprised of a bunch of partisan hacks” because a June 2024 poll cited by Statista reported that only 30% of U.S. adults had "a great deal" or "fair amount" of confidence in the Court.
If a case involving Trump’s ability to remain in office beyond his second term comes before the Court, it is quite plausible that the conservative Justices Thomas and Alito, and Trump’s appointees Justices Gorsuch and Kavanaugh would craft an argument to support his efforts. Thus, Trump would need only the support of either Chief Justice Roberts or another of his appointees, Justice Coney Barrett, to win the case and remain in office.
Both justices have recently showed signs of not necessarily being unconditional Trump loyalists. Roberts rebuked Trump’s demand for Judge Boasberg to be impeached for ruling against his efforts to deport immigrants without them having an opportunity to challenge their destination by stating that an appropriate response to disagreement is appellate review not impeachment. Roberts also joined Coney Barrett and the liberal justices in opposing Trump by upholding a lower court ruling mandating the Trump administration pay out nearly $2 billion in payments to contractors who worked for the US Agency for International Development.
Both Roberts and Coney Barrett can end the uncertainty of whether they would side with Trump by unambiguously stating as soon as possible that the 22nd amendment would force Trump to leave office after his second term. To be sure, judicial norms, the justices’ cautious personal style, and ethical guardrails are strong reasons why Roberts and Coney Barrett would be unwilling to prejudge whether Trump could remain in office. But Roberts and Coney Barrett must realize that based on Trump’s actions on January 6, they should, indeed must, make an exception that would greatly benefit the nation by prejudging the issue.
The justices also should realize that Trump knows he can use the threat to try to remain in office as a bargaining chip for any number of demands. Thus, even if the justices believe the 22nd amendment applies but prefer to wait for a case to appear before them before stating a position, they will give Trump the opportunity to use his bargaining chip. For example—and many examples could be imagined—Trump could demand that all past and future state and federal civil and criminal actions against him be dropped forever; otherwise, he would try to remain in office regardless of the cost to the nation.
Little doubt exists that Trump will use the years before the end of his term to plan his legal and public relations strategy to remain in office and to energize his base to intensify his position. By prejudging the issue, Roberts and Coney Barrett may upset Trump and his base, but they will make it clear that Trump’s threat to democracy will not hang over the nation for the rest of his term.
