The Supreme Court said Friday that it will, as predicted, take up the question of whether Donald Trump should be disqualified from running for president because of his role in the January 6th insurrection.
Decisions by the Colorado Supreme Court and by Maine's secretary of state have raised constitutional questions about whether Donald Trump should be permitted to run for president again, given that the 14th Amendment disqualifies all those who engaged in insurrection against the government. The question is a politically thorny one, though to constitutional scholars on both sides of the political spectrum, the answer is firmly "no."
As the Associated Press reports, the Supreme Court confirmed Friday that it would take up the case, which has been appealed by Trump and his campaign.
The constitutional provision comes in Section 3 of the 14th Amendment, passed after the Civil War, which contends that anyone who has taken an oath "to support the Constitution of the United States" will be barred from holding government or military office if they "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
Trump's attorneys have contended that a) the office of the president is exempted from the provision because it is not explicitly mentioned — while the offices of senator and state legislator are; and b) Trump's actions on January 6th did not amount to participating in insurrection; and c) removing him from a ballot would need to be done by act of Congress, not by individual states.
New York Times Supreme Court expert Adam Liptak has said that any decision about this is not likely to break down along easy 6-3, conservative-liberal lines on the high court, and that even among Trump's three appointees — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — there have been rulings against Trump in earlier cases.
But, Liptak said on The Run-Up podcast, this is not a decision the justices want to be making, generally — especially after the mess of Bush v. Gore. And there is a high likelihood that they will craft a narrow ruling that allows Trump to stay on the ballot in Colorado on procedural or technical grounds, without ruling on the constitutional question itself — the idea being that Trump's eligibility to be president ought to be decided by voters and not the court.
Whichever way the Supreme Court rules, Liptak notes, it is going to anger "half the country," and further deepen the court's current, broad unpopularity.
Were the court to rule in favor of the plaintiffs in the Colorado case, it would theoretically mean that Trump would not be eligible for the ballot in any state.
"This case is of utmost national importance. And given the upcoming presidential primary schedule, there is no time to wait for the issues to percolate further. The Court should resolve this case on an expedited timetable, so that voters in Colorado and elsewhere will know whether Trump is indeed constitutionally ineligible when they cast their primary ballots," said lawyers for the plaintiffs, in their brief to the court.
The court has scheduled arguments in the case for February 8, and they will likely rule before Colorado's primary, is which is on Super Tuesday, March 5.
Here in California, Secretary of State Shirley Weber declined to disqualify Trump on 14th Amendment grounds, saying that secretaries of state should be ensuring election integrity, and not participating in "partisan politics."
Governor Gavin Newsom agreed, saying, "There is no doubt that Donald Trump is a threat to our liberties and even to our democracy, but in California, we defeat candidates we don’t like at the polls. Everything else is a political distraction."
The problem, of course, is that congressional Republicans were too weak-willed to convict Trump in his second impeachment, and are too beholden to a rabid electorate with an apparent death wish for democracy — or, from many of their perspectives, an undying faith in Trump's greater purpose, which, obviously, is not just pathological egotism, racism, despotism, avoidance of prosecution, and self-aggrandizement.
And the way that the electoral college is breaking down by current polls is really, really scary to those of us who see Trump for what he is. Go ahead. Try doing the math.
Liptak's prediction: The high court will side against Trump on the question of his immunity from prosecution in the federal cases against him, but side with him on the Colorado ballot question, and thus appear "even handed" in their rulings.