February 12, 2024

Could the Justices Go 9-0 on Colorado?

The tone and direction of the justices’ questions during last Thursday’s oral arguments in the Trump-Colorado case were telling.

What gives Colorado the right to decide the presidency for the rest of the nation?

That seemed to be the sentiment last Thursday not only of the Supreme Court’s conservatives but also its liberals, as the Court heard oral arguments on whether Colorado could invoke the 14th Amendment’s Civil War-era “disqualification” clause to bar Donald Trump from its presidential primary ballot.

Indeed, some of the toughest questions came from Obama appointee Elena Kagan and Biden appointee Ketanji Brown Jackson. Only the dimmest bulb among the justices, Sonia Sotomayor, seemed inclined to rule in favor of Colorado.

“The question you have to confront,” said Kagan to Jason Murray, who gamely but unconvincingly defended Colorado’s decision to ban Trump, “is why a single state should decide who gets to be president of the United States.”

Jackson, meanwhile, drilled down into the specific language of the 14th Amendment, whose Section 3 lists certain officeholders but oddly omits one in particular. “Why didn’t they put the word ‘president’ in the very enumerated list in section three?” she asked. “Doesn’t that at least suggest ambiguity?”

These questions and others like them were as clear a sign as you’ll ever see that the justices are seeking a resounding consensus rather than a contentious 6-3 or 5-4 ruling.

At issue is the December 19 decision by Colorado’s Supreme Court — a 4-3 decision by an all-Democrat court — which said that Donald Trump was ineligible for the state’s upcoming GOP primary because he’d incited an insurrection on January 6, 2021. (Hey, nothing screams “incitement” more loudly than a president encouraging his supporters to “peacefully and patriotically make [their] voices heard.”)

Asked whether the events of January 6 met the Constitution’s disqualification standard, Trump lawyer Jonathan Mitchell answered, “For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence.” Apparently, Mitchell thinks a relatively small and unarmed mob of rioters spurred on by a still mysterious number of undercover FBI agents falls somewhat short of that ancient and obscure “insurrectionist” standard.

Chief Justice John Roberts seems to understand the Pandora’s box that will no doubt be opened if he and his fellow justices get this one wrong. “If Colorado’s position is upheld,” he suggested to Murray, “surely there will be disqualification proceedings on the other side. A goodly number of states will say, whoever the Democratic candidate is, ‘You’re off the ballot.’ And others for the Republican candidate, ‘You’re off the ballot.’”

It’s hard to argue with that assessment. And it’s hard to take the all-Democrat Colorado Supreme Court seriously when it purports to defend democracy by denying the American people their right to elect the president of their choosing.

Roberts isn’t the only one who sees a tit-for-tat future if “insurrection” is allowed such an expansive definition. As former Attorneys General Ed Meese, Bill Barr, and Michael Mukasey argue in a friend-of-the-court brief, “Without a clear statutory definition, the types of presidential actions that might be deemed an ‘insurrection’ are virtually limitless.”

On the other hand, as The Wall Street Journal reports, “A ruling in favor of Trump likely would extinguish similar efforts playing out in a variety of states, including in Maine, where a December decision from Secretary of State Shenna Bellows, a Democrat, barring Trump from the ballot is on hold until the Supreme Court decides the Colorado dispute.”

Indeed, the Maine decision, which was carried out unilaterally by Bellows, a partisan bureaucrat and the former executive director of the Maine branch of the American Civil Liberties Union, seems especially egregious. Think of the power being exercised here by a single partisan official within a single state.

Not surprisingly, the former president liked what he saw from his home in Florida last week. “In watching the Supreme Court today,” Trump remarked on Thursday, “I thought it was a very beautiful process. I thought the presentation today was a very good one. I think it was well received. I hope it was well received.”

The Wall Street Journal editorial board suggests one possible outcome: “The best course for the country would be for the Justices to settle this case on the narrow legal issues, and not to enter the political fight over whether Jan. 6 was an insurrection. The Justices don’t need to go there if they find that Section 3 doesn’t cover the President. A 9-0 decision would send a unified message to the country that Colorado is wrong on the law.”

With Colorado’s GOP primary scheduled for March 5, the Roberts Court is on the clock. Which is why a narrowly tailored decision like the one outlined above seems more likely than not.

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