Supreme Embarrassment.

The high court gives short shrift to Colorado Constitution protectors. The takeaway: It's up to us to save our country from Donald Trump.

Ed note: The following post was written during and immediately after Thursday’s (in my view) disastrous Supreme Court hearing of Colorado’s decision to remove Donald Trump from the presidential primary ballot for his role in the Jan. 6 insurrection. In the last three days, I’ve listened to Constitutional experts Laurence Tribe, Michael Luttig, Neal Katyal, and George Conway.

All have backed up my assertions that the nine-member panel failed to consider the big issues at stake and instead focused on little, perceived anticipated problems beyond their purview, such as how Trump’s removal from the ballot would be handled by the states. And instead of viewing the removal protection as democratic, in that it would protect democracy, the Court saw the removal as undemocratic because it would “deny voters” of the chance to vote for Trump.

Neal Katyal summed up the shortcomings of the Court’s reasoning: “We heard all about the risks of affirming the Colorado decision and none about the risks of rejecting it.” He added that Trump’s assertions before the Court and SCOTUS judges reaction to them, “treated the issue as if they were looking for loopholes in the tax code. And nothing about how removing an insurrectionist from the ballot was consistent with our democratic values and not inconsistent” (8 feb 2024.msnbc.com).

In addition to Katyal’s concerns, The Resistant Grandmother (TRG) spotted an another especially disturbing phenomena: That none of the three jurists appointed by Democratic presidents dared to raise those issues on their own. This suggests a serious question going forward: Will Judges Elena Kagan, Sonia Sotomayor, and Katanji Brown Jackson break from the six Republican-appointed judges (most appointed by unpopularly elected presidents) or think and speak independently in any way? In other words, have they joined the Republican jurists’ group think, portending more of the same lopsided reasoning to come?

Expecting to hear the Court’s opinion by the beginning of the week, we will hear our answer. I pray it will not be what I expect.

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At some point, I decided not to continue listening to the oral arguments in today’s Supreme Court hearing of Donald Trump’s challenge to the Colorado Supreme Court’s finding he was disqualified from that state’s presidential primary ballot. 

 It was simply too painful.  Judging from the friendly-sounding questions addressed to Trump’s counsel and the more pointed ones aimed at Colorado's, at some point I decided the fix was in.  As I write, I think maybe that’s too harsh and disrespectful a reaction. But I felt it nonetheless. 

Where’s our history?
Maybe it’s just because I had read the amicus brief filed by the country’s leading historians that laid out the reasoning of the framers that went into drafting Section 3 of the 14th Amendment. Their detailed, precisely-documented treatise described how the Amendment’s framers feared insurrectionists like Confederate President Jefferson Davis, having staged a rebellion against the United States government, could run for president, endangering the country and its government all over again.

Written by famed Civil War historian David Blight and others, the historians’
brief read:

“They knew that no one in the United States was above the law, not even the President, and that no republican government can afford to return insurrectionists to office” …

It added:
“The language of this Section 3 of the 14th Amendment) was so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come.” 

Our future wasn’t addressed, either
But the existential issues raised by American historians were nowhere to be found in today’s court session. At no time did it come up that Trump has declared that if he were to become president he would transform the American government from a democratic republic to an authoritarian scheme similar to that of Viktor
Orban's Hungary.

Trump would be in league with foreign adversaries, his administrative state purged of expertise, the justice system turned on his enemies as he has said publicly.  And America’s courts would stand as lone bulwarks, protecting freedom for as long as they could retain that role. 

Instead, the conversation focused on arcane technicalities, its back-and forth Q and A with Trump attorney Jonathan Mitchell sprinkled with the former Texas Solicitor General’s rebranding the Jan. 6 insurrection as a “riot.”  He largely got away with it, save for some brief, rushed pushback from Justice Sonia Sotomayor. 

There was no discussion of how Jan. 6 conformed to the insurrection concerns of the founders, and how the Section 3 protections may be necessary to avoid another rebellion by an out-of-control modern president. 

Strict construction, where are you?
Nor did the strict constructionists/textualists like Alito, Gorsuch, and Thomas take the text at face value: No person …. having previously taken an oath as …an officer of the United States… shall have engaged in an insurrection or rebellion…”

Instead, the nine justices acted as one – quibbling over whether or not the president “was an officer” or held an “office.”  If no, the insurrectionist former president could be immune from the Amendment’s restrictions.  That’s where they were headed, even joined in by Biden-appointed Justice Kantanji Brown Jackson who refused to believe that “office holder” referred to the American president unless explicitly spelled out.

Salmon Chase can’t be banked on
And then there were the painful attempts to look back at the only case(s) following the Civil War that could even vaguely serve as precedent, given that no American president except Trump had ever staged a coup. Both involved former Chief Justice Salmon P. Chase who at the time was trying to secure the Democratic nomination for president (3 feb. 2024 nbc.com).

According to a December analysis of the case by jurist James Zirin and a Feb. 3 report by NBC’s court reporter Lawrence Hurley, in presiding over the trial of former Confederate President Jefferson Davis, Chase declared that Davis should not face prosecution for treason.  (Shades of Gerald Ford’s decision to pardon Richard Nixon in 1974?)

In another case, Chase decided that a former Confederate judge presiding over the fate of a Black man charged with murder was not banned from adjudicating the case under Section 3 of the 14th amendment, injecting ambiguity into the interpretation of Section 3 banning all former Confederate officers from holding positions of power in the post-war government. 

Chaos is as chaos does
Today’s high court judges appeared more than happy to pick up the thread, fearing ”chaos” in the election process if every state could decide an insurrectionist should not be on the ballot for themselves. Throughout the discussion were references of a Congressional remedy, as Chase hinted at, but later reportedly backed away from. 

To this writer, talk of Congressional remedies seemed especially ill-advised given the current House section of the 118th Republican-led Congress has passed virtually no legislation at Donald Trump’s insistence, even the kind dealing with immigration they’ve been demanding for decades. Their dismal record now ranks even lower that that of the early 1930s Congress in the days of Herbert Hoover (steve rattner, morning joe 7 feb. 2024 msnbc.com) that was in session fewer days than where the 118th Congress stands now.

States rights when it suits them
But what really got to TRG was the Court’s inconsistency over the states v. federal rights issue. Thursday, the justices changed their tune about favoring states rights over federal, now favoring federal edicts restricting states’ decisions over candidates applicability.  That is in contrast to their vote in 2022 overturning the federal protections of Roe v. Wade over to state legislatures without the blink of an eye. 

For example, in Dobbs v. Jackson, Mississippi Women’s Health, Justice Samuel Alito mocked the 1972 , 7-2 Roe decision for its “absence of any serious discussion of the legitimacy of the State’s (sic) interest in protecting fetal life,” taking aim at Roe’s “failure for not recognizing states’ legitimate interest in potential life.”  In consideration of Dobbs, TRG wondered, “Don’t states have an interest as to whether an insurrectionist gets a shot at becoming president? Yet not one member of the nine-judge panel considered this worthy of consideration on Thursday.

Setting the tone
No, it seems the Supreme Court is now ready to do a reversal of their Dobbs reasoning and remove any state empowerment over the applicability of presidential candidates, upending not 50 years (Roe), but 240 years of precedent on how to run elections. 

Confronting Colorado attorney Jason Murray early on, Roberts set the tone for the nine other justices that would pursue the same thread, as Roberts asked Murray,  incredulously:

“The 14th Amendment was meant to constrain states’ rights and empower the federal government…and (thus, the states were ) the last place you would look for authorization for the states, including the Confederate states, to enforce the presidential election process.” 

Now, however, when the future of the American republic is at stake, the high court attests states would wrongly decide in taking an insurrectionist president off their ballots. Again, this represents a 360 turn from Roe’s overturn message: whatever states want, goes. 

Bottom line, TRG is left to ask, “afraid of chaos, Supreme Court?” My answer: then welcome to the world of confusion and potential danger that next week’s likely opinion will portend for Americans if (or when) the Court nullifies Section 3 of the 14th Amendment and invites insurrectionist Donald Trump onto the presidential ballot, unimpeded, in 2024.

It’s up to us, again
Not knowing for sure whether the Jack Smith criminal prosecutions will see the inside of a courtroom before the Nov. election due to Trump’s strategy of appealing each aspect of the pre-trial process, Americans can no longer rely on institutions to save us.  Just as we did in 2018, 2020, 2022, and 2023 when American voters stepped up to the plate, nothing short of the fate of the Republic rests on our batting average.

If the nation’s high court won’t keep its eye on the ball, we must.

–trg

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