Do the right thing, Supreme Court. Affirm the Colorado decision.

It did its job with distinction. Now do yours.

I really want to believe the U.S. Supreme Court will do the right thing and vote in favor of Colorado’s freedom to keep Donald Trump off the primary ballot. But once burned, from the disastrous Dobbs decision overturning Roe v. Wade on June 24,  2022, twice shy.  So I do not.

I’m not alone.  

Washington Post columnist Jennifer Rubin, a court-watcher and lawyer, said recently:

“If the Constitution is to mean anything, originalists tell us, its text must be followed even if the outcome is politically dicey … And yet, few expect the Supreme Court’s right-wing majority, so profoundly lacking in credibility, to follow Section 3’s clear mandate, any more than they expect Justice Clarence Thomas to recuse himself, given his wife’s alleged involvement in the coup plot.”

Trump’s a menace. It’s time to treat him that way
Unlike the Dobbs v. Jackson Women’s Health decision where the Court did away with a 50-year-old precedent and created a problem that did not exist, the Court now faces a real problem: Trump’s second bite at the apple of the presidency in spite of his masterminding the Jan. 6 insurrection against the U.S. 

Trump has already told Americans what he would do if elected to a second (perhaps never-ending) term, including: doing away with certain provisions of the Constitution that protect election fairness; use the Justice Department to prosecute political rivals; follow through on a desire to execute or at least punish former Chairman of the Joint Chiefs of Staff for calling China to quell any possible military action, given American instability during the Jan. 6 insurrection; close down cable and broadcast networks not friendly to Trump; round up immigrants (whom Trump has called “vermin”) for immediate deportation; abandon the North Atlantic Treaty Organization (NATO), an effective bulwark against Russian aggression; remove trained experts throughout the government and replace them with toadies who will gather data and issue reports that support Trump’s agenda, not provide expertise for a free and modern society; target women for misogyny and verbal abuse, as shown by his treatment of female opponents and departmental officials; chip away at Social Security and Medicare while offering more tax cuts to the wealthy; and ignore the realities of climate change by defundng the EPA and rolling back climate protections under Biden.

Yesterday, Trump’s appearance in a federal courtroom in Washington raised the stakes even higher as Trump has petitioned an appeals court to immunize himself from past or future criminal prosecution.  In short, Trump’s attorney asserted the former or future president could not be prosecuted even if he used the Navy Seals to assassinate a political opponent –  unless first he had been found guilty by vote of impeachment.  

Fear of Trump pollutes Impeachment option
Absent that, the man who was impeached twice but not convicted would not face criminal punishment for his crime.  Of note, Senator Mitt Romeny, R-Utah, last September told reporters some members of Congress and the Senate opted not to vote for Trump’s impeachment out of fear harm may come to themselves and their families from Trump and his supporters (14 sept 2023 washington post “The terrorizing style in American politics”). 

The latest Trump-related issue before the nation’s high court (a hearing has been scheduled for Feb. 8) is the Dec. 19 decision by the Supreme Court of Colorado that removes Trump off the state’s primary ballot under the provisions of Section 3 of the 14th Amendment. Written in 1868 three years after the end of the Civil War, the law disqualifies Trump because of the amendment’s legal characterization of a person unfit to hold thepresidential office:

“any person who has engaged in insurrection or rebellion against the United States, or given aid or comfort to its enemies, from holding any federal or state office 12”

The law has already been used to discharge an official who participated in the Jan. 6 rebellion.  Last September, a New Mexico court removed a county commissioner found to have broken “his oath of office to never engage in an insurrection or rebellion or give aid or comfort to those who do” (8 september abc news.com). 

Colorado: “masterful”
The Colorado Court’s decision, supported with historical precedent and documents underscoring the intent of its authors, was met with high praise in judicial circles. Republican Constitutional expert and former federal judge Michael Luttig deemed it “masterful” and “worthy of great respect.”  

Included in the Colorado finding was its clear and forceful rebuttal of Trump’s assertion he did not participate in an insurrection. It cited Trump’s own words and actions that day, including telling his armed, violence-prone supporters the election had been “stolen,” to “fight like hell,” and “take back our country.” Then Trump did nothing while the rioters threatened to hang Mike Pence, building a scaffolding on the expanse in front of the building for that purpose; sought out then-Speaker Nancy Pelosi and ransacked her office; and befouled the Capitol with human excrement. Trump then explicitly endorsed their actions by proclaiming his “love” for the rioters supporting him and thwarting the peaceful transfer of power.  

The Colorado justices also dismissed the former president’s assertion that Section 3 did not pertain to the president. While the first draft of the amendment, as authored by Rep. Samuel McKee of Kentucky, mentioned the president and vice president, the second and final version substituted those titles for the more sweeping “any officer, civil or military.” The Colorado court held that term by definition includes the presidency, citing historical and contemporaneous definitions of “office” and “office holder” and common understandings of what constituted “civil” positions, all of which included the presidency.

If the framers had meant to exclude the president, they would have made that clear in the final iteration – something like, “anyone running for president is excluded from these restrictions.”  But no verbiage exists to that effect, either in the final language or any other notes, documents, or other references of that time.

“The loyal alone shall rule”
For good measure,  the jurists unearthed McKee’s speeches.  In one, McKee affirmatively laid out the framers’ intentions, saying, “The loyal alone, shall rule
this country.”   

To believe the framers intended to say something like, “While all other disloyal civil or military office holders must be barred from running for office, it’s all right with us if a disloyal president runs, wins, and then rules the country.”  Such a sentiment defies logic and the author of Section 3’s own words. 

In his filings with the Colorado Court and in speeches and rallies, Donald Trump has focused on his “right” to appear on the ballot using an ironic sense of the word “freedom.”  In Trump’s way of thinking, the Colorado opinion denies his freedom to run for president and the freedom of his followers to vote for him, not understanding the nation’s own right to determine who may run for office, vote peacefully, and have its choice respected – none of which Trump did before, during, or after Jan. 6. 

Freedom for Trump and no one else
And by denying the right of voters in swing states like Michigan, Wisconsin, Pennsylvania, Arizona, and Georgia – using harassment and threats against election officials, exerting personal pressure they change the numbers to his favor, and strong-arming Georgia’s Secretary of State Brad Rappensberger to find “11,780 votes, or one more than we have” to switch that state’s 16 electoral votes to Trump from Biden. By Trump’s definition, freedom applies to him, but not anyone else.

The right to restrict
As a rebuttal to Trump’s “freedom trope,” TheBulwark editor and co-founder Charlie Sykes and others remind us that the United States is a “constitutional, representative democracy” in that our system imposes restrictions on freedom – moderating our form of government with checks and balances based on the rule of law, Sykes said.

Conservative columnist Jonah Goldberg added, “By example, courts are mostly non-democratic…But they’re not anti-democratic” in that they help democracies survive and function. 

And so the Constitution sets restrictions on who may run as a presidential candidate: they must be at least 35 years old and natural-born citizens, which means Arnold Schwarzenegger, who was born in Austria of Austrian parents, or a 34-year-old may not be considered for the highest office, for example. Those restrictions were expanded to anyone who “engaged in insurrection or rebellion against the United States” by the Fourteenth Amendment of 1858.

Colorado’s blueprint
In a big way the Centennial State has already done what the U.S. Supreme Court could and should do – provide a credible and muscular defense of democracy and Constitutional principles.  The Court must affirm it for that and other reasons, not the least of which is the way most Americans feel about the Court, especially
since Dobbs.

American respect for the Court has plummeted since in 2000 when the Court essentially gave the presidency to George W. Bush.  By a narrow 5-4 margin, the Court stopped the state-mandated Florida recount in a razor-thin contest between Bush and Gore in that state. 

A descending level of respect
Before Bush v. Gore, 23 percent of Americans registered “great faith” in its decisions; by 2002 that sentiment dipped to 17 percent, a number it sustained pretty much up to 2020, two years before the Dobbs decision.  After Dobbs, those who had “great faith” dipped to 9 percent, a record low. Only 40 percent registered a “fair amount” of faith in the wisdom of the Court, compared with 44 percent in pre-Dobbs 2022 (gallup.com).

Even now, court-watchers no longer trust the Court to come down fully on the side of American democracy when facing direct threats from Donald Trump.  They cite the Court’s counter-majoritarian stances on women’s reproductive freedoms and voting access, allowing states to push through tougher restrictions on women’s reproductive choice and to depress the vote, as the states’ prerogatives.  

Such decisions enable minority forces to project a bigger influence on government in spite of an increasingly smaller voter population, especially as they also deflate the majority of Americans’ faith and trust in the Court. 

Anti-majoritarianism, its specialty
According to Raymond Lohier, judge of the United States Court of Appeals, second circuit, in a 2022 discussion at Duke University Law School, low poll numbers are evidence that Americans now see “judicial decisions not as a product of impartial deliberation based on the facts and the law in each case, but as a favor for or against a particular party”… (and as something) “pre-ordained, based entirely on the composition of the decision-making (court) panel,” he said.

If it were just a matter of polls, the Court might justify putting its thumb on the scale for Trump, as any too-cute-by-half technical offramp scheme dressed up as judicial opinion would equate to.

For example, the Court could simply conclude Trump is qualified to be president and leave it at that without further explanation.  Or it could overrule Colorado on a technicality – saying that there was something wrong in the way the case got to the court, or punt it off to a Republican-led Congress to make the decision, which the current dysfunctional Congress most likely could not.

Odds are, some of the Republican-appointed justices with Clarence Thomas and Samuel Alito heading the list would be only too happy to throw the election Trump’s way, as Bush v. Gore did for George W. Bush.  

But Constitutional scholars with their fingers on the pulse of the Court and who believe in the strength of the Colorado opinion think the chances are good the Court will uphold the Dec. 19 decision, with two big “ifs,” given the inconsistency of the current Supreme Court: 1) if the Court is willing to write its opinion with the welfare of the American as their first priority, and 2) if it is willing to protect the Constitution at all costs.

Luttig: Go with the Colorado decision
Because former federal judge and Conservative jurist Luttig believes the Colorado decision is “unassailable and irrefutable in every single respect,” he believes it can guide the U.S. Court in determining the case on the big issues of preserving democracy and the sanctity of the voting process.

The Conservative jurist further predicted the Court would not buy into one of the former president’s key arguments: that the president is immune from Section 3 because of the “officer” issue:
“I do not believe the Supreme Court will ever hold that the president of the United
States is not an officer of the United States,” Luttig said.  He added that the
historical and legal evidence is more than sufficient to easily make that case.

The stickier issue is determining legally what an insurrection is. Here too, Luttig believes the Colorado Court again has it covered: “An insurrection requires some action of force that disrespects and disrupts the exercise of a Constitutional duty.”  That, too, fits the definition of what Trump did on Jan. 6 and afterwards as he continued to thwart the peaceful transfer of power and stay in office, defying American voters’ determination that he leave.

With the stakes already high and having just become stratospheric after Trump’s Tuesday contention in court he can kill anybody he wants and get away with it, America’s highest court should rid America of the Trump menace once and for all by simply and forcefully upholding a Constitutional amendment, as did the Supreme Court of Colorado. Simply put, we need the Supreme Court to step up, do the right thing, and affirm the important determination rendered Dec. 19 by the Colorado Supreme Court.

–trg

Who I write for…