In the end, the supreme court justices displayed little interest in the finer details of constitutional law, which normally pays their salaries and over which the country has been obsessing now for days.
Who is an “officer of the United States”? Leave that to one side. Should the 14th amendment’s disqualification of insurrectionists in federal posts apply only to office holders or can it also be deployed against electoral candidates? Let’s come back to that.
Even the big question – did Donald Trump engage in insurrection in luring his supporters to the US Capitol on 6 January 2021 – barely got a look in at Thursday’s historic oral arguments. Only one of the nine justices, the liberal-leaning Ketanji Brown Jackson, asked a single question of Trump’s lawyer, Jonathan Mitchell, inviting him to state his position on such a vexed and burning issue.
No, Trump did not, Mitchell predictably replied, in part because an insurrection had to be “an organized, concerted effort to overthrow the government”. Jackson shot back with the forensic wit that in her 18 months on the mahogany bench has become her trademark.
“And so a chaotic effort to overthrow the government is not an insurrection,” she said. It was a rare moment of release in more than two hours of dense legal discussion.
What the justices were, almost to an individual, concerned to talk about was what the consequences of their judgment would be, both for American democracy and for their own standing. Should they side with the Colorado supreme court, and remove Trump from the ballot, then what?
Elena Kagan, another of the three liberal-leaning justices, wanted to know whether a victory for Colorado would effectively impose that state’s decision to cast Trump into the wilderness on the voters of all other states. “Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?” she pondered.
Samuel Alito, one of the hard rightwingers on the court, wondered whether the logic of Colorado’s argument – that a federal office holder who committed insurrection should immediately and automatically be disqualified – would allow military officers to cease obeying a president’s orders from the Oval Office.
John Roberts, the chief justice, looked inward, asking himself what the consequences of stripping Trump from the Colorado ballot would be for his own court. He painted a picture of a dystopian world in which a ruling that sided with Colorado would unleash a flood of partisan challenges from other states under the insurrection clause, each of them with different standards of proof and evidentiary rules.
“In very quick order, a goodly number of states will say, whoever the Democratic candidate is, ‘You’re off the ballot’, and others, for the Republican candidate, ‘You’re off the ballot’, and it will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.”
Not least for Roberts himself. “We will be deciding whether there was an insurrection when one president did something, as opposed to when somebody else did something else. So what do we do?”
For Roberts, this was more than merely a question about possible future workload. It was far more existential than that: it was a heartfelt cry that the court should avoid being dragged into the contentious thick of presidential elections, where only grief could lie.
As time ticked on, and the arguments continued, it became clear that the Roberts’ view – pragmatic, cautious, allergic to future controversy – was widely shared by almost all the justices. Such uniformity of opinion raises the prospect of a rapid decision in coming days, with an 8-to-1 vote or even 9-to-0 being eminently possible (the only point of uncertainty being the third liberal justice, Sonia Sotomayor, who contributed little).
Such an outcome would make Roberts the second biggest winner of the day. He will hope that a unanimous or near-unanimous ruling on such an explosive issue will help redeem the court amid growing public skepticism over its many corruption scandals and blatantly partisan rightwing jurisprudence.
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The chief justice is only too well aware of the low esteem in which his court is already held by the American people, and he is desperate to avoid further slippage. A recent NBC News poll found that only 28% had a positive view of the justices, the lowest rating in the poll’s history.
The biggest winner, of course, is Trump. Barring a major surprise, the court is all but certain to overturn the Colorado ruling and keep the former president back on the ballot. After the pounding he has taken from the courts in recent days, it will mark a rare – and no doubt heavily-exploited – victory.
There is one other aspect to the winners and losers from Thursday’s deliberations, and it’s the most important one of all. How does democracy come out of all this?
Brett Kavanaugh, one of three rightwing justices appointed by Trump, was clear that keeping the former president on the ballot was a win from democracy. “What about the idea that we should think about democracy, and the right of the people to elect candidates of their choice? Your position has the effect of disenfranchising voters,” he told the lawyer representing the Colorado plaintiffs, Jason Murray.
It was one of several critical comments directed at Murray from the bench. But it invoked a parting warning from the lawyer.
Should Trump win in November, the question of an insurrectionist returning to the White House will not have gone away. In words that may yet haunt the court, he said: “I think it could come back with a vengeance.”
Source: US Politics - theguardian.com
