Supreme Court: Likely to keep Trump on ballot

“The U.S. Supreme Court had an appointment with history” last week, said Andrew Rice in New York magazine, “and from the sounds of it, the justices were looking for a way to get out of the obligation.” During oral arguments, none of them seemed inclined to seriously consider Colorado’s stance that the 14th Amendment’s “insurrection” clause legally disqualifies Donald Trump from the state’s primary ballot. Chief Justice John Roberts made “an oblique reference” to what happened “down the street” at the U.S. Capitol on Jan. 6, 2021, but the justices “seemed determined to find a way to decide the case without addressing the question of whether Trump had engaged in insurrection.” Instead, they debated technicalities, such as whether Trump qualified as “an officer of the United States” under the amendment. This case gives the court “an opportunity to show that it follows the law and the facts, not just the political preferences of the justices,” said Erwin Chemerinsky in the Los Angeles Times. “Prepare to be disappointed once more.”

Actually, even the liberal justices expressed strong skepticism about Colorado’s right to disqualify Trump, said Andrew C. McCarthy in National Review. Rightly so: The insurrection clause was adopted in the wake of the Civil War, to keep former Confederate states from electing defeated rebels to office. The clause “empowers Congress, not states” to ban insurrectionists from office, and in fact was designed to limit state power.

The justices’ “scolding” of Colorado’s attorney indicated that “this goose is cooked,” said Mark Joseph Stern in Slate. The supposed “originalists” and “textualists” in the conservative wing focused not on the plain meaning of the insurrection clause but on the “political crisis” they’d trigger by disqualifying the presumptive Republican nominee. “Consequence-based judging is not how this Supreme Court purports to interpret the law.” Still, “pragmatism” has its place, said Noah Feldman in Bloomberg. If Trump is disqualified, some future state legislature or elected state supreme court will “follow partisan sentiment and declare some perfectly innocuous presidential candidate guilty of insurrection.” As both liberal and conservative justices noted, it would set a dangerous precedent in a polarized nation to let a single state sabotage a presidential candidacy. “Despite the threat Trump poses to our constitutional democracy,” it’s “better to force the voting public to take responsibility for who it elects president.”