The Colorado Supreme Court handed the United States Supreme Court a chance to staunch the high court’s credibility bleed-out.
In ruling that former President Donald Trump is disqualified from the ballot in Colorado, that state’s highest court stayed its ruling until Jan. 4, 2024—one day before the state deadline for its primary ballot certification—in order to give time for “any further appellate proceedings.”
The only further appellate proceedings would likely be before the U.S. Supreme Court, and the Colorado court recognized that in its stay—essentially inviting the high court to rule on a novel issue involving the presidency and whether the so-called “Disqualification Clause” of the 14th Amendment can bar Trump from running because he engaged in “insurrection or rebellion” against the Constitution, or that had “given aid or comfort” to such insurrectionists or rebels.
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Numerous cases have been filed around the country seeking disqualification of Trump under this theory.
The historic nature of the case also offers SCOTUS an opportunity to counter its historic loss of credibility in the eyes of the American people, brought on by the ever-growing arrogance of its conservative majority.
First, they could simply decline to hear the case, or at least decline to hear it immediately and leave the disqualification in place. This makes a great deal of sense legally, since states run their own elections under the Constitution although it is hard to imagine the justices—both liberal and conservative—will be able to restrain themselves from the opportunity to speak out at a historic moment.
Second, and more likely, they could take the case on an expedited basis and affirm the disqualification, but limit the ruling to the factual basis made by the trial court in Colorado.
Appellate courts, including SCOTUS, are reluctant to overturn factual findings, and by relying on the facts found in this case only, SCOTUS could make a ruling that would present a narrower target for public criticism from the right. It’s the equivalent of the martial arts adage of turning your side to the opponent, presenting a smaller target.
But that hasn’t been the recent behavior of the justices, with Justice Samuel Alito taking to writing op-eds and the recent reveal that Justice Neil Gorsuch officially took only ten minutes to join Alito’s draft overturning a half-century of precedent by overruling Roe v. Wade. That’s more like a fighter wading in hands down and taunting their opponent. But the price of such antics for the high court is the loss of respect and credibility.
Such a strategy would also follow the court’s supposed leaning towards letting states decide issues for themselves. The Dobbs ruling—which returned abortion laws to the states—is resulting in a crazy-quilt patchwork of laws across the country. There is no reason why the same cannot be true for disqualification of Trump. Some states will and some states won’t, and that should be fine for SCOTUS.
As constitutional law scholars like Professor Laurence Tribe and former conservative federal judge Michael Luttig concluded, the disqualification clause is self-executing and the plain language seems easy to understand even today. But while one would think that the conservative originalists on the court would follow this common-sense reading, that may be a hard result for them to reach.
It’s hard because like all centers of power, SCOTUS leans towards protecting the powerful. That lean has become a complete prostration—with the reveals of actual millions of dollars of “friends with benefits” bestowed on a jurist like Justice Clarence Thomas, and the fact that all of the conservative justices owe their seats to the careful hatchery of the Federalist Society.
It’s become increasingly plain that the conservatives seek to disguise their submission as constitutional interpretation—when what’s really happening is they are wielding their power in the service of conservative billionaires and the causes they support.
That’s why SCOTUS should sit this one out and not take the opportunity to revel in the conservative charade of “let’s play Originalist” and eagerly reach out to define who is an “officer of the United States” or whether Trump was afforded sufficient due process. They have a legally sound factual record they can rely upon and a prudent basis to avoid jumping in to try and help decide an election.
Historically, SCOTUS has protected its treasure of credibility by being stingy. Stingy in the cases it takes and stingy in the breadth of their rulings. A return to that practice would be wise in this case.
To do otherwise would be yet another step in consolidating the court’s power as the most powerful branch of government. It would also be another grievous wound to the integrity of the institution.
