A Ballot Decision for Trump
Terry H. Schwadron
March 5, 2024
One trouble with Supreme Court decisions meant to clarify is that they often do the opposite, leaving the base questions still hanging on more unfolding circumstances.
Another is that the Court insists that in settling questions of law, it is avoiding both the practical impact and political fallout of what it does.
Yesterday’s 9–0 decision to stop states from blocking Donald Trump from appearing on the Colorado primary ballot today — and from other state ballots as the campaign — over the Constitution’s 14th Amendment rejection of those who participate or aid insurrection from office reflects both.
Indeed, we should take note that the court’s concurrent opinions show that four justices disagreed about the breadth of a decision that delivered Trump a huge partisan campaign victory.
In deciding to overturn the Colorado Supreme Court on the appropriate role of states to enforce the Amendment for a presidential contest, the Court insisted that only Congress — a body that these days cannot even decide what time it is — can set rules for how such eligibility should be resolved. Justice Amy Coney Barrett said bluntly that insistence on Congressional enforcement was unnecessary to decide this case.
Though the ruling was technical and focused on law, its meaning was a partisan boost for Trump, who immediately — and in part wrongly — declared a massive win. It was not unexpected to hear that a single state court, judge, or secretary of state, could bar a presidential candidate for office, but Trump had wanted exoneration from any suggestion of insurrection. He didn’t get it.
Reading The Silences
Ultimately, however, what may have been most significant is the silence of the justices about two other issues.
The first judicial silence was whether Trump’s conduct leading up to Jan. 6, 2021, constituted participation or aid for an insurrection. The second is while the ruling narrowly concerns keeping Trump’s name on the ballot, it is silent about what will happen if Trump wins in November and this same fight returns about whether he is eligible to take office, to swear allegiance to an oath he already has abridged.
Of course, between now and November, we should have a trial on criminal charges arising from Trump’s role in the Jan. 6 rioting and in seeking to undercut the counting of Electoral College ballots. Oh yes, the same Supreme Court just agreed to give Trump yet more legal rope and further delay on those charges and others by offering him a chance on April 22 to argue that he has full immunity from any criminal charges for any “official” action while president.
So that decision remains unresolved, and, once again, we will be having a version of this conversation repeatedly until a ruling is made and released — including whether it will come in a time that will still allow a trial to occur before the November elections.
The Colorado Supreme Court decision was based on a factual finding by the trial court that Trump did indeed participate in insurrection. But yesterday’s decision does not even acknowledge the question.
In other words, that Trump is an insurrectionist has not been challenged.
We’ve already seen how at least 146 Republican members of Congress would vote to ignore election results they do not support or like.
The Court neither took a role in deciding whether Jan. 6 was an “insurrection,” on whether the office of president was involved through duties that are official or unofficial, or on whether Trump is somehow immune even from facing trial on criminal accountability.
What People Take Away
The headlines, nevertheless, were about a victory for Trump. The sad truth is that things are a bit more complicated.
Apart from his advocacy of autonomous reign for himself, the now all-but-certain Republican candidate is facing 91 criminal counts for multiple alleged crimes in multiple jurisdictions, and those include allegations that the 14th Amendment seems to say in plain language disqualify him from retaking office, just like age or nation of birth.
Trump himself insists on rewriting history to exempt himself from any legal or behavioral question. The Court is showing that it won’t seek to enforce eligibility, and as it defers to a Congress that is incapable of any kind of agreement on any issue, wants to give Trump another official spin on the immunity wheel.
It’s hard not to feel that all of what we see happening as a partisan-driven set of maneuvers to deliver Trump safe through legally shark-infested waters either to victory or to a Congress that will try to fulfill the promise of Jan. 6.
##