Beholding the SCOTUS Disqualification Unicorn

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I wanted to respond to a few questions and comments about my disqualification post. It’s a complicated issue that a number of you have raised. In so many words, I said that in the very unlikely case that the Court found that Trump had participated in an insurrection and allowed the Colorado decision to stand, it would still be up to individual states to remove him from the ballot. Clearly no red state is going to do that. And it seems unlikely that any purple states would do it.

TPM Reader BS writes: “I think you’re underestimating the impact of the (admittedly slight) possibility of SCOTUS affirming the removal of Trump from the Colorado ballot. However the majority phrases it, this will be seen and interpreted as the GOP-dominated SCOTUS, the highest court in the land, finding Trump GUILTY of insurrection.” (Don’t hold BS‘s initials against him.)

As BS goes on to argue, this would unleash a tidal wave of recriminations within the GOP and open the door to swing states removing Trump from the ballot.

Okay. Let’s take this one piece at a time.

First, as both a technical and substantive matter, the Court wouldn’t “affirm” Colorado’s decision. To the extent this is at all likely, they would decide that it’s Colorado’s decision to make. Remember: they’re not reviewing a decision by an inferior federal court. Would that be interpreted as the Court ruling that Trump was guilty of “insurrection”? I’m not sure that’s the case. But it would be a really big deal. And I think it would likely encourage more states to consider the idea.

Let’s say the Court made a ruling that actually addressed the merits of the decision and found in Colorado’s favor. It might not literally make an insurrection finding. But to be clear, I agree that that would be like a thunderclap across the American political system. It would be a very big deal. I still don’t think any red states would remove him from the ballot unless the Court specifically enjoined it. But it would sow all kinds of chaos within the GOP coalition.

If the Court meaningfully addressed the insurrection issue, it might change the terms of the political and judicial conversation in many states. Who says it’s an insurrection? Well, SCOTUS does! It puts the burden totally on the Trump team. And that’s a pretty hard argument to respond to. (They’d figure out a way. But still.)

As I told BS, I struggle to process this series of questions in my mind since it is so unlikely the Court will back Colorado. They’re going to give this to Trump. In the unlikely case they allow Colorado’s decision to stand it will almost certainly be on a very narrow reasoning that the decision is up to Colorado. But yes, to the extent you’re asking, the Court in any way backing disqualification would be a very big deal. Not because it’s likely to directly remove Trump from any red or even purple states but because it would affirm the gravity of Trump’s attempt to overthrow the constitutional order.

But again, none of this is going to happen. Did I mention that?

Many people would say, so this is all a waste of time. Why even do it? That’s where I disagree. As I’ve explained in other posts, I think the substantive question is complicated and equivocal about the proper interpretation. But as I’ve said, you simply cannot get around the fact that the simple text of the amendment appears on its face to address Trump’s actions. It’s right there! A first blush read isn’t the end of the story. There are contrary arguments. But the whole effort is worth it if for no other reason than that it keeps the question of Trump’s betrayal of the constitution and attempted coup in the public mind. Every day we are talking about what he did is a good day. It’s like when defense attorneys talk about putting the government to its test. At a minimum make the Trump renegades explain in court why his insurrection doesn’t count.

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