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The Supreme Court Is Not Going to Save Us From Donald Trump [1]

['Elie Mystal', 'John Nichols', 'Jeet Heer', 'Adam Johnson', 'Chris Lehmann', 'Ross Barkan', 'Megan Hunt', 'Gail Cornwall', 'Kelli Weston', 'Katrina Vanden Heuvel']

Date: 2024-02-09 10:00:00+00:00

Politics / The Supreme Court Is Not Going to Save Us From Donald Trump The justices have made clear that they do not think the 14th Amendment disqualifies Trump from running for office. That means there’s only one way to stop him—at the ballot box.

Artist sketch depicting attorney Jonathan Mitchell arguing before the Supreme Court on behalf of former president Donald Trump on Thursday, February 8, 2024, in Washington, D.C. (Dana Verkouteren via AP)

The Supreme Court heard oral arguments yesterday in Trump v. Anderson, the case about whether Donald Trump can be kicked off the presidential primary ballot in the state of Colorado, in accordance with Section 3 of the 14th Amendment, based on his attempt to overturn the 2020 election. To cut to the chase, the court will almost certainly overrule the Colorado Supreme Court and reinstate Trump on the ballot. And it will likely do it on the strength of a unanimous, 9-0 ruling, with all the justices joining together to shout “prank caller” at the 14th Amendment and its clear calls to exclude insurrectionists from office.

That the six conservative justices would come to this conclusion, text be damned, was largely expected. And I anticipated that Chief Justice John Roberts would work hard to craft an opinion that brought the liberal justices on board, so that his eventual ruling wouldn’t seem so drastically partisan. But the upshot of yesterday’s arguments is that Roberts will not need to convince them: At least two of the liberals seemed as eager to keep Trump in the running as any guy sitting in a diner wearing a MAGA hat.

The arguments opened with Jonathan Mitchell, representing the Trump position, giving a master class on how not to argue in front of the Supreme Court. Mitchell, whom readers might remember as the former Texas solicitor general and the architect of Texas’s SB 8 anti-abortion bill, spent an incredible amount of time arguing against himself. The justices literally brought up arguments that they wanted him to make, to help him win the case, and he responded by telling them that they were wrong, or that he didn’t want to make the point because he didn’t think it would help him. (As an example, Mitchell almost refused to argue that Trump was denied due process in the Colorado proceeding, even though there were justices interested in that point). If Trump were, you know, skilled enough to follow along with a Supreme Court oral argument, he might be menacing ketchup bottles over this quality of representation.

Still, it was only when Jason Murray, the lawyer representing the effort to keep Trump off the ballot, rose to argue that the justices really started tipping their hands. Roberts, along with justices Samuel Alito, alleged attempted rapist Brett Kavanaugh, and Amy Coney Barrett, all asked Murray why one state—Colorado—should be allowed to decide who gets to be on the ballot for, essentially, the rest of the country.

Murray had a credible answer for this, one that usually wins in conservative circles: states’ rights. Murray said that Colorado had the right to determine its own election rules, and the Constitution grants “near-plenary” power for the states to determine their own election processes for federal officials. This is a point conservatives make constantly when they’re defending the right of states to, say, institute voter ID laws, close off early voting, or make any number of rules that restrict voting rights and limit voting access to poor people or people of color.

But here, states’ rights didn’t satisfy the conservatives, and didn’t persuade Justice Elena Kagan, who had the exact same concerns as the conservatives did. She worried about the lack of “uniformity” that would happen if the court upheld the Colorado ruling. She (like Roberts and Alito) kept hammering on hypotheticals, in which one state would exclude Trump while other states would exclude “other” candidates, and we’d be left in a situation where each state would have entirely different ballots for the presidential election.

Murray, again, had a basically credible answer to this. He said that we had to trust states to apply their own laws faithfully. He pointed out that insurrection was pretty rare and it was unlikely that states would cynically use the standard for political means. Now, I think we all know that Murray’s hopes and dreams are flatly wrong, given that we’ve all seen what red-state governors like Greg Abbott and Ron DeSantis are capable of. But as a legal proposition, the court shouldn’t be deciding cases based on what it thinks bad-faith politicians will do with its decisions. At the very least, if bad-faith political maneuvers are a thing the court now cares about, it might try applying that standard to its voting rights and gerrymandering decisions first, instead of only suddenly becoming concerned about this when an insurrectionist runs for president.

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[1] Url: https://www.thenation.com/article/politics/the-supreme-court-wont-to-save-us-from-trump/

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