There has never been any doubt about how the Supreme Court would rule in the Colorado case in which its highest court took Donald Trump off the ballot for engaging in insurrection January 6, 2021. We took up the Colorado decision and the controversy that swirled around it in December and said

“It is foregone that the Supreme Court would not dare disqualify Trump, not after infamously deciding who should be president in 2000’s Bush v. Gore.”

It may be your preference –simply to let the people vote – but first it should not pass unnoticed how political the Court was in order to wriggle free of the unequivocal language of the Fourteenth amendment.

Let’s go through a few of the exchanges in which it seemed that each justice had been assigned a role to find loopholes for why the amendment does not apply to Donald Trump.

offices and officers

Remarkably, the highest court in the land tried to make the case that Section 3 of the Fourteenth Amendment does not apply to the former president because “president” is not specified in Section 3. It reads,

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States”

…who had sworn an oath to support the Constitution and then engaged in insurrection.

It fell to the Court’s newest justice, Ketanji Brown Jackson, to argue that the president is not to be found in that language. Jason Murray, a 38-year-old attorney arguing a case before the Supreme Court for the first time, spoke for Colorado. “Why didn’t they put the word ‘President’ in the very enumerated list in Section 3?”, Justice Jackson asked. “They were listing people that were barred and president is not there.” In reply, Murray told her,

“This came up in the debates in Congress over Section 3 where Reverdy Johnson [attorney general at the time] said why haven’t you included president and vice president in the language? And Senator Moore responds: We have. Look at the language, ‘any office under the United States.'”

Of late, the Supreme Court wants to base its decisions on America’s history, but Ms. Jackson breezed past that and chose her preferred history. “They weren’t focusing on the president”. They were concerned with preventing confederates from infiltrating state offices and working their way to Congress to attempt a southern takeover, was her take. Murray said, yes, but “the Framers were concerned about charismatic rebels who might rise through the ranks up to and including the Presidency.” Like none other than former Confederate President Jefferson Davis.

Justice Jackson responded “that electors of vice president and president are there” (our emphasis) in the list of those barred from office if insurrection is in their past, that the authors were thinking “we’re going to bar insurrectionist electors” and that will make certain “that person is never going to rise”, there being no electors inclined to propose the charismatic confederate. Wait a minute, doesn’t that argument say that the presidency was indeed denied to an insurrectionist, just by other means?

Mr. Murray tried again. He set out to make the point that Section 3’s wording, “No person shall … hold any office, civil or military, under the United States”, was meant to be all-inclusive but certain other positions in government had to be specially enumerated because…

“Presidential electors… don’t hold an office. Senators and representatives don’t hold office either. The Constitution …refers to them as holding seats, not offices. So you want to make sure there’s no doubt that senators and representatives are covered…”

Justice Jackson cut him off. Did she see that what was coming would persuasively say that “any office” covered everyone else including the president?

chaos theory

Chief Justice Roberts asked,

“Counsel, what do you do with the — what would seem to me to be plain consequences of your position. If — if Colorado’s position is upheld, surely there will be disqualification proceedings on the other side. And some of those will succeed. Some of them will have different standards of proof. Some of them will have different rules about evidence…I would expect that, you know, 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’ll come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.”

Is Roberts counsel for Trump? He’s parroting Trump’s argument. When he says, “whoever the democratic candidate is, you’re off the ballot”, has he forgotten that Section 3 is concerned only with insurrection? What Democrat conducted an insurrection? Was he consulting Laura Ingraham at Fox News who asked why couldn’t Republicans retaliate by removing Biden from the ballot for leaving the border open? That’s an insurrection? Roberts then said “Insurrection is a broad, broad term”. No it isn’t. It’s a word with a definition. Here’s Merriam-Webster: “The act or an instance of revolting especially violently against civil or political authority or against an established government.”

Let’s back down his wild hypothetical to simply each state deciding whether or not Trump should be on its ballot. Roberts forewarns “just a handful of states that are going to decide the presidential election, that’s a pretty daunting consequence.” Well, yes, that’s what happens anyway under the Electoral College, as in both 2016 and 2020.

rocky mountain high

Justice Elena Kagan chastened counsel Murray with,

“I think that the question that you have to confront is why a single state should decide who gets to be president of the United States…[T]his question of whether a former president is disqualified for insurrection to be president again is, you know, just say it, it sounds awfully national to me.”

It was an effort to make Colorado’s position outlandish. Murray came back with,

“No, Your Honor, because, ultimately, it’s this Court that’s going to decide that question of federal constitutional eligibility and settle the issue for the nation.”

The Court was not asked to apply Colorado’s ban of Trump nationwide; it was asked either to say every state may decide for itself who’s on their ballot, or to say that no state can ban Trump by using the Constitution’s Section 3 that disqualifies insurrectionists from becoming president.

Justice Samuel Alito asked Murray “then what would we do?”

“If different states had adjudicated the question of whether former President Trump is an insurrectionist, using a different record, different rulings on the admissibility of evidence, perhaps different standards of proof?”

There was much back and forth on this in which the justice seemed to be straying into the “alternate truth” of Trump adviser Kellyanne Conway. Mr. Murray essentially said the Court would have to do its job and decide which case was the more convincing but “what we have here is an insurrection that was incited in plain sight for all to see.” For Alito that was “you’re really not answering my question. It’s not helpful if you don’t do that.”

When Justice Jackson later argued against the “disuniformity” that would result if different states were allowed to say to candidates “you’re eligible, you’re not”, Murray left the Court with a conundrum:

“It would be a little bit odd to say that states can’t enforce [Section 3], that only the federal government can enforce it, and that Congress can essentially rip the heart out of Section 3 … just by failing to pass enforcement legislation.”

Which is exactly the case today. Congress, split into partisan fragments, has not given a thought to legislation around Section 3 and disqualification despite our now having experienced a full-blown insurrection. So we will see the supposed strict constitutionalists of the Court, in disallowing the states from deciding who should be on their ballots, neutering Section 3 because there is no enforcement mechanism other than the states.

just let them vote’

Justice Brett Kavanaugh asked wouldn’t it be better to drop the insurrection question and just let the people vote in November for whom they want to be president? He asked Murray,

“What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide? Because your position has the effect of disenfranchising voters to a significant degree… What about the background principle, if you agree, of democracy?”

There it was, out in the open, a political solution having nothing to do with the law. As said at the outset, it may be what you, reading this, prefer, but on the way to that likely outcome, we are pointing out that Kavanaugh — and soon the Court — will be casting aside the Constitution, and that’s quite a departure.

Mr. Murray had to remind Justice Kavanaugh that Section 3 protects our democracy, that “those who had violently broken their oaths to the Constitution couldn’t be trusted to hold power again because they could dismantle our constitutional democracy from within” and, oh, by the way, “President Trump tried to disenfranchise 80 million Americans who voted against him. And the Constitution doesn’t require that he be given another chance”.