Deborah Pearlstein in The Atlantic:

The difficult questions in this case are likely to leave the justices divided. But there is no legal reason these claims need to leave them politically polarized, with the six Republican-appointed justices on one side and the three Democratic appointees on the other. The legal arguments surrounding the meaning of Section 3 do not align neatly with partisan preferences. The conservative wing of the Court has famously embraced originalist interpretation, but the originalist arguments here work strongly in favor of the claim that Trump engaged in insurrection. The cases most protective of speech rights come from the liberal Warren Court, but their effect here is to strengthen the argument for retaining Trump, whose “engagement” in violence amounted to speech inciting others to do it for him. In this setting, a 6–3 decision where the conservatives all vote to keep Trump on the ballot and the liberals all vote to take him off risks fatally undermining whatever public faith remains that the Court’s power is even partially constrained by principled legal interpretation, or indeed by anything other than raw partisan preference.

But at most, these arguments about the Court’s legitimacy point to the importance of it avoiding partisan polarization in its judgment. Legitimacy is not an argument to duck the merits of the case altogether. No matter what the Court does next, its popular legitimacy will be sorely tested. Tens of millions of Americans are going to believe that it got the answer wrong, and that the result of the 2024 election is at best unfair because of it. Punting will only make already bad matters for American constitutional democracy worse. For there is no legitimacy, or democratic stability, in governing institutions that do nothing but race to see who can avoid taking responsibility for the hardest issues for the longest time. And basing decision making not on facts or law but on, as some have counseled in this case, fear of arbitrary violence is anathema to a rule-of-law system. In an era of rising antidemocratic sentiments in the United States and around the world, constitutional democracies have to be able to show that they are capable of fulfilling the most basic functions of governance. In this case, at the very least, that means deciding to decide.