A generation ago, the U.S. Supreme Court would almost certainly do everything it could to avoid getting involved in the sort of election-related cases that are now irresistibly ricocheting toward the portico of Corinthian columns at One First Street, NE, in Washington.
But now the nine justices of the court, no longer the artful dodgers of jurisprudence of olden days, are being confronted with a spate of cases they very likely cannot avoid – and, quite possibly, won’t be inclined to sidestep. They also may not speak with the single voice their predecessors would have laboured to reach.
This fresh dynamic became clear this week when the Colorado Supreme Court ruled that former president Donald Trump could not appear on the ballot for the state’s Republican primary for next year’s election. The decision was based on a constitutional provision disqualifying officials who were involved in an insurrection from serving in what the 14th Amendment describes as “any office, civil or military, under the United States.”
But while the country’s attention has been fixed on the changes in the presidency and in Congress, the transformation in the character and inclinations of the high court may be even more dramatic.
It was once a homely truism that the sober rhythms of the Supreme Court were best expressed by the humorist Finley Peter Dunne, who from the late years of the 19th century through the first three decades of the 20th used a fictional Irish bartender to express ageless political commentary and wisdom. It was his Mr. Dooley who proclaimed: “Th’ Supreme Coort follows th’ election returns.”
Now, in an age of disruption, the reverse may well be the case.
It seems certain that America’s ultimate arbiters may be confronted with ruling on the Colorado decision, along with separate election-denial cases growing out of the Jan. 6, 2021, riot at the Capitol, and on Mr. Trump’s claim that he has “absolute immunity” from prosecution for his actions as president.
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One issue the jurists may be unable to avoid is a question that has produced gaping divisions since the mayhem nearly three years ago: What constitutes an insurrection? Another is: Did the Senate’s acquittal of Mr. Trump in his second impeachment, which charged him with fomenting an insurrection at the Capitol, implicitly clear him of any further insurrection charges?
Customarily the court has been cautious about wading into high-controversy, high-impact, blatantly political matters. But its action in essentially tipping the deadlocked election to George W. Bush and away from Al Gore in 2000, then overturning Roe v. Wade 22 years later, suggests a new reluctance to sidestep major political issues. Conservatives now hold a 6-3 advantage in the court, with half of the new majority having been appointed by Mr. Trump.
Former Supreme Court justice Sandra Day O’Connor, who died earlier this month, later expressed squeamishness about the court’s involvement in the 2000 election decision.
Public approval of the court reached a low of 38 per cent the month after its abortion decision, according to the Marquette University Law School poll, and has remained in the 40-per-cent range since then.
Seldom have the jurists faced a high-profile case that involves such a clash of historical analysis with current circumstances as the matter the Colorado court set in motion and that justices in as many as 15 other states may soon replicate. Similar initiatives have either failed or been withdrawn in 16 states, with Massachusetts having done so earlier this week. A decision from Maine is expected next week.
The high court almost certainly will take the case but may be chary of banning a former president from the ballot. That’s also the view of Mr. Trump’s most persistent critic on the campaign trail, former governor Chris Christie of New Jersey. “I do not believe Donald Trump should be prevented from being president of the United States by any court,” Mr. Christie said. “I think he should be prevented from being the president of the United States by the voters of this country.”
At the heart of this controversy is Section 3 of the 14th Amendment, which bans from office any individual who “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The amendment was adopted in 1868, three years after the end of the Civil War, and was aimed at barring former Confederates from office. It specifically mentions several political positions, but the word “president” does not appear.
One of the principal issues facing the court more than a century and a half later is the provision’s relevance beyond the Civil War – whether, in short, it can be applied to Mr. Trump and, as an additional question, whether Mr. Trump can be considered to have spawned, or participated in, an insurrection.
Another issue in the matter derives from a separate element of the 14th Amendment, which is regarded as one of the most consequential of U.S. law: the “due process” provision. Mr. Trump’s lawyers almost certainly will argue that because he has not been convicted of any crime, removing him from the ballot is a violation of that provision.
This is where the law and politics will have their most portentous collision.
On the surface, this involves an important matter of law. But its implications are deeply political, not only regarding the matter of whether Mr. Trump can be disqualified from the ballot – that is possible though unlikely – but also whether, in the bizarre physics of contemporary politics, the 45th president’s drive to return to the White House might actually get a boost, first by this controversy and later by the actual debate about and within the chamber of the high court. Mr. Trump’s political prospects have only improved since he accumulated 91 felony counts in four criminal cases, and his campaign treasury has ballooned apace.