I wasn’t all that surprised when the Colorado Supreme Court ruled that Donald Trump, America’s favorite fascistic insurrectionist, should be kicked off the Colorado GOP primary ballot for his many crimes against democracy.
But I am still a little shocked.
I’m shocked to see it, well, not exactly on paper, but on the cyber world version of paper. But, in either case, it’s still there in black and white. And whatever happens next, however Trump fares in the 91 felony counts he’s facing, however likely Republicans are to nominate Trump again despite his unprecedented Trumpiness, the court’s ruling will be forever memorialized.
The ruling has been called monumental and explosive and extraordinary and, from some quarters, as Ted Cruz so affably put it, “garbage.” Vladimir Putin apparently didn’t like it, either. And yet, the ruling made Stephen Colbert, just as one example, break out into a happy dance. I suspect he wasn’t the only one.
And now we wait to see what the real Supreme Court does with it. Although few actually expect the nine Supreme Court justices to uphold the Colorado decision, there are a number of scholars who wonder how they’ll manage to avoid it. Let’s just say the justices are practiced at avoidance, when necessary. They just avoided ruling on whether presidential immunity applies to what a former president did while in office, sending the case back to an appeals court.
The best argument against the Colorado ruling is that, in the best case, the people should get to decide whether Trump is fit to be president. You might notice that’s not a legal argument, but it is a real one. That’s how democracy is meant to work, even though, due to the undemocratic Electoral College, the person who gets the most presidential votes doesn’t always win. That has happened twice in the century, including, if you’ll recall, in the 2016 election of one Donald Trump, who, of course, insisted the vote was rigged even in victory.
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And even though Trump himself has more than dabbled in trying to get a candidate disqualified — he was, of course, a leading offender in the phony Barack Obama birtherism campaign — that doesn’t mean we should follow Trump’s lead, now or ever.
Meanwhile, Trump’s principal primary opponents — Ron DeSantis and Nikki Haley — are both passing up the chance to say this ruling shows, once again, that Trump is unfit for office. Neither candidate trusts democracy that much, and maybe with good reason. Calling out Trump probably isn’t a winning argument in a Republican Party primary — see: Christie, Chris — but the silent treatment means Republicans won’t actually be asked to face the question of Trump’s, uh, fitness (and I don’t mean the body-shaming photos popular on social media.)
Still, if Trump were to be kicked off the ballot, we could expect the rigged-election boys to be out in force, and very likely in much greater force than they managed in their January 6 assault on the Capitol. Colorado Supreme Court justices have already received threats.
And there are Republicans, including some who are currently trying to impeach Joe Biden despite a complete lack of evidence, who are threatening to kick some future Democrat off some future ballot despite a complete futuristic lack of evidence. That’s a real concern.
But here’s the thing about the Colorado Supreme Court ruling. As the conservative originalists on the Supreme Court like to say, their job is to — as one law professor put it — resolve “on the narrowest possible grounds … rather than wading into political or normative policy conundrums in ways that aggrandize their own power relative to that of the other branches of the government.”
In other words, the originalists say all you have to do is to read the text to know what to do, and not to worry about what real-time effects the decision might have. In other words, if the court goes against the will of the country by overturning, say, Roe v. Wade, originalists insist the Constitution gives them no choice.
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And now, as more than a few law professor types have noted, the Colorado Supreme Court has called the Supreme Court’s bluff. Because the 4-3 ruling — despite the fact that all seven justices having been appointed by Democrats — sticks as closely to originalism as it can.
You can read, as I have many times at this point, Section 3 of the 14th Amendment to take your own look at the plain text. It says that if an “officer” of the government has taken an oath to “support” the Constitution and then “engages in an insurrection,” the officer should be disqualified from holding office.
The section was, in fact, written after the Civil War and meant to apply to traitorous Confederates. But as originalists will tell you, if there’s a problem with the law, Congress can change that. If Section 3 doesn’t apply to Trump, who would it apply to?
The court could rule that the office of president, which is not specifically named in the amendment, might not be considered an office for this amendment’s purpose. But the constitution tells us of the “Office of the President.” Is that really a serious argument?
There is also an argument, based on a reading of Section 3, that Congress should play a role in this decision, but Congress played no role when some Confederates were disqualified after the Civil War.
At the heart of the matter is what it actually means to engage in an insurrection or even how to define an insurrection. And do you have to be already convicted of being an insurrectionist in order for any court to label you one?
These are tricky areas. But in the original Colorado District Court ruling, Trump was ruled an insurrectionist. The judge, however, did not disqualify Trump from running though because, she said, there was so little judicial guidance on how he might be disqualified and who could do the disqualifying.
The U.S. Supreme Court could say that Trump’s actions leading up to January 6 and his actions that day don’t make him an insurrectionist. But what would he be, if not an insurrectionist? Personally, I love the word “mutineer,” but that’s just me.
Clearly Trump incited an assault on the Capitol. We know that because we all watched it on TV. But is an assault on the Capitol to stop Congress from counting the Electoral College votes the same thing as an insurrection?
It’s hard for me to take that question seriously about the guy whose only real vow is to preserve, protect and defend his own, uh, rear end.
I’ve got two guesses on how this turns out.
One guess is that however strong the case might be, this Trump-McConnell-delivered Supreme Court will find a way not to disqualify Trump, even though some of the Trump appointees have ruled against him at times. Though the justices may not admit to it, they’ll inevitably consider the potential chaos, the potential harm, the potential for turning the nation’s deep political divide into a forever-impassable chasm when making their decision.
As one who desperately hopes Trump will never come near the Oval Office again, I have to admit to my continued ambivalence on the issue. The people should get to reject him. But what if they don’t? Where are we then? If the ruling is legal, shouldn’t it apply?
My second guess is that, in its ruling, the Supreme Court won’t touch the insurrectionist matter. If the court’s ruling is based in large part on preserving whatever credibility it has left, it cannot reasonably say that Trump did not engage in a multi-pronged attempt to prevent the peaceful transfer of power. To paraphrase Groucho Marx — or was it Chico? — Who you gonna believe, Trump or your lyin’ eyes?
After reading the Trump disqualification ruling, I’m pretty confident the Colorado Supreme Court reached the correct, if profoundly difficult, decision. Now we can only wait to see how the U.S. Supreme Court inevitably finds a way to say it didn’t.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow. Sign up for Mike’s newsletter.
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