On the day before Super Tuesday, the Supreme Court of the United States ruled that Colorado couldn’t disqualify a presidential candidate who had first sworn an oath to the Constitution and then was found in a court of law to be an insurrectionist.
You know, like, say, Donald Trump.
The Supreme Court ruled that a state couldn’t even disqualify a candidate who had been found, in the process of insurrecting, to have tried to overturn the results of an election.
You know, like Trump did.
Trump is off the hook because the court somehow determined that a state can’t disqualify a candidate running in a federal election and especially not if it’s a presidential election.
If it’s a state election, that would be different, according to the nine justices. Then disqualification would be on the table.
It’s an interesting distinction, but try finding it in the actual Constitution.
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No one was surprised by the Supreme Court ruling, even as a series of legal experts would explain that the not-really-unanimous decision — more on that later — basically ignored the plain text of the 14th Amendment, which seemed to allow a state to do just that.
It’s obvious that when Section 3 of the 14th Amendment was written, at a time following the Civil War, people were serious about insurrection.
Today, despite Trump’s role in the assault on the Capitol on January 6, we don’t seem to be quite so serious. In fact, the court’s decision somehow never even mentioned Trump or the charge that he was an insurrectionist. I mean, what’s a little insurrection among friends?
Today, Trump gets a pass. Just as he got a pass after two impeachments. Just as he’s trying to get a pass on the judgment against him for repeatedly defaming E. Jean Carroll. Just as he’s trying to get a pass on the even larger New York civil fraud penalty.
Yes, it was an unsigned 9-0 decision by the Supreme Court that overturned the Colorado Supreme Court ruling, but one with at least three and possibly four, um, concurrences that amounted to dissents.
We knew from oral arguments that it was going that way. And we knew why. The decision, the justices felt, needed to be unanimous in order to avoid, well, chaos. Let’s face it, the idea of disqualifying Trump was just too radical for the court to accept. Instead, it was argued — and it’s not a terrible argument, but maybe not a constitutional one — that one state shouldn’t have the power to influence a presidential election in that manner.
And so the justices came up with the distinction between federal and state races. And they further decided that only Congress could define the mechanism by which a federal candidate could be disqualified, which led to the dissenting concurrences.
And so, the Supreme Court finds an off ramp, but we are still left with a chaotic threat to democracy in play, and with Trump able to say once again that he was being persecuted by Joe Biden, who had nothing to do with the Colorado lawsuit. You may recall it was filed by Republicans and unaffiliated voters, led by the formidable Norma Anderson.
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We are left with a Supreme Court that gives every impression of doing what it can to slow the wheels of justice — having delayed the January 6 trial again to consider Trump’s already-well-refuted take on presidential immunity — at least as justice would be applied to the alleged insurrectionist.
We are left with a Supreme Court that seems ready — as the three liberal, uh, concurrers strongly suggested — to go all Bush v. Gore, if necessary, to ensure that justice for January 6 doesn’t come to Trump. A plain reading of the, uh, concurrence reveals that the three liberal justices hold that “the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”
One of the “alleged” insurrectionists is, of course, Donald Trump — who, according to Colorado courts, isn’t simply alleged.
I am not a law professor, although some of you may know that my daughter is. But I can read.
I’m not a late-night comedian either, but I can quote one. Seth Meyers joked that “the Supreme Court remains the only place where Trump wins the popular vote.”
Which brings us back to the November election. I’m writing this before the Super Tuesday results, but I’m pretty confident that whatever happens, Trump will be the Republican nominee.
It would be a crime — among many alleged crimes — if the January 6 federal trial weren’t decided, or at least begun in earnest, before people vote in November. If you’re looking for good news, there is still a chance, apparently, that the case could be heard in time.
Assuming the Supreme Court rules against Trump on presidential immunity, as nearly everyone not related to Trump believes, the trial could begin — as legal experts from Just Security explain — in time for the January 6 trial to conclude before November or at least to be heard in part.
That would mean, at minimum, Trump sitting in court in late fall while the presidential campaign is in full swing. The 91 felony indictments have clearly helped Trump in a Republican primary contest. Being judged a fraudulent sexual assaulter hasn’t hurt him, either.
But that’s in the GOP primary season. According to the polls, many say they wouldn’t vote for Trump if he were convicted of a felony, but no one really knows. The same polls show Trump leading Biden today.
I think it’s fair to say that the Supreme Court knew it needed a unanimous decision — even one that may not be constitutionally sound, one that wasn’t even really unanimous — to preserve what’s left of its credibility.
I think it’s fair to say, too, that if the Supreme Court slow-walks its immunity decision to the point that there can be no January 6 trial, it wouldn’t have credibility left to lose.
In any case, we now know the judicial system isn’t prepared to save American democracy. That will be up to the voters.
Which leaves one final, not-exactly-legal question: You think it’s possible to hold your breath until November?
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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