I have written this article for Slate. It begins:
The Supreme Court will soon be under the microscope like it hasn’t been since it ended the disputed 2000 U.S. presidential election in Bush v. Gore, as it considers not one but now two major cases that each could strongly influence whether Donald Trump will become president again. One of the major criticisms from the left of the court’s opinion in Bush was that it was a “one day only” ticket to hand George W. Bush the presidency without establishing a legal precedent to apply to other cases. And yet Trump is making similar arguments in both of his cases coming before the court, arguing for a kind of exceptionalism that would help Trump, and only Trump, regain power and stay out of jail. If the court cares about its legitimacy and its sagging public opinion, it should not embrace Trump exceptionalism no matter how it otherwise decides these cases….
Just about everyone who wishes to run for president has served in an earlier office and taken an oath to support the Constitution. Joe Biden, for example, was a senator, among other things, before becoming president. In his reply brief, Trump admits he is arguing for an exception that likely would apply only to Trump and to no one else: “Each of our 46 presidents, except George Washington and Donald Trump, would be covered by section 3 because they held a previous job listed in the amendment.” In other words, if the court accepts Trump’s primary argument, it won’t affect the meaning of Section 3 for any candidates running for president except as to Donald Trump.
Trump has made similar exceptionalist argument in the criminal case for election subversion filed by special counsel Jack Smith in federal district court in D.C. That case was supposed to go to trial in early March, but Trump took a special appeal to the United States Court of Appeals for the D.C. Circuit, putting trial preparations on hold. Trump is arguing that he is immune from criminal prosecution for any official act he did as president and that his attempted election subversion was an official act….
Whatever the court does, it needs to be guided by the principle that like cases should be treated alike, and no person is above the law. The surest way for the court to lose more respect in the public’s eye is if it creates a rule that helps Donald Trump and only Donald Trump.