Barring Trump from the ballot isn’t even the biggest issue at stake
One Trump court case that is worth following
American politics is simultaneously hard to watch and compulsive viewing. Somewhere between an episode of Married at First Sight and the end of humanity.
Nothing demonstrates this so much as the endless legal entanglements involving the immediate past president.
I would recommend ignoring most of them (like I continue to ignore MAFS).
But not all.
One to pay attention to is Trump vs Anderson.
Late last year, the Colorado Supreme Court made a big splash by disqualifying Donald Trump from standing for President in that State at the request of 91 year-old Norma Anderson (a lifelong Republican and former Colorado State Majority Leader) and three other plaintiffs. The claim is that Trump’s actions on January 6, 2021 fall under the ‘insurrection clause’ (section 3 of the 14th Amendment) of the US Constitution which states that no one “shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office” if that person had “engaged in insurrection or rebellion” against the government.
A decision either way is huge. If upheld, it will significantly influence the outcome of the 2024 presidential election, should Trump secure the Republican nomination (which is all but confirmed). A number of states would likely follow Colorado (Maine’s Secretary of State has already determined that Trump is ineligible in that State, however her decision is on hold pending the outcome of the Colorado case) making it virtually impossible for Trump to secure a majority. Should the Court overrule Colorado’s decision and let him stand, it could be read as tacit approval of his involvement in January 6 attacks and raise reasonable concerns of what might transpire should he lose the 2024 election.
In oral arguments on Friday 9 February, the Justices seem less interested in whether Trump’s involvement in the January 6 attack on the US Capitol constitutes “insurrection” and more whether Colorado should have the power to enact this part of the Constitution, especially given its effect on a Federal election. As such a number of observers are reporting (including the ever reliable SCOTUSBlog) that the Court is likely to rule against Ms Anderson and her colleagues.
It is an apparent retreat from the observed preference of the Court’s conservative majority which favours ‘states rights’ in most constitutional cases. Unlike Australia (from where I write) which has independent electoral commissions at State and Federal levels, in the US the states themselves determine the laws and processes that govern elections (including Federal elections for the President, Senate and House of Representatives) creating an odd mix of process and rules across the country. In this context, to find that a State doesn’t have the power to implement the insurrection clause begs the question of who does? The Court may find that US Congress alone has this role, either through enacting laws, or the established process of impeachment, both of which have proven to be practically impotent in a highly partisan environment.
And yet I think there is an even bigger issue at stake than whether a standing US president engaged in insurrection while in office, and whether he can stand for re-election.
The bigger issue is whether the institution of the Supreme Court (and by extension the institutions of the US government itself) can withstand the conditions eating away at the foundations of US democracy.
Can either side, regardless of the outcome, abide by the result?
The reaction of Trump supporters to a decision to bar him from the ballot is almost unthinkable, with the memory of January 6, 2021 still too fresh in the minds of Americans. Conversely, if he is allowed to stand in Colorado and elsewhere - and is ultimately elected - will Democrats ever see him as a legitimate president? Or would Democrats in Congress follow the lead of the 147 Republicans’ who voted against certifying Biden’s election in 2020 and refuse to certify Trump, taking the interpretation of the 14th Amendment into their own hands?
Our nation states are no more than collections of institutions. Institutions only exist because we agree they exist. And the most fundamental of these agreements is the rule of law. The Supreme Court (like the High Court here in Australia) has no army, no police force. It can’t forcibly make people comply with its decisions.
The Supreme Court’s decisions only stand by mutual agreement of the population. If this agreement breaks down the institution fails, and with it, potentially, the nation itself.
Perhaps Taylor Swift will have something to say about all this?