There is an opinion on the Big Trump Test by the Supreme Court
The Colorado Supreme Court is Doing What It Takes to Protect The Future of Democracy: When Donald Trump is Disqualified from the Primary in the Republikan Republic
When Donald Trump appeals the Colorado decision disqualifying him from the ballot in that state’s Republican primary, the Supreme Court should overturn the ruling unanimously.
Some aspects of American election law are perfectly clear — like the rule that prohibits candidates from becoming president before they turn 35 — but many others are invitations to judges to resolve uncertainty as they see fit, based in part on their own politics. Section 3 of the 14th Amendment was put in place to block insurrectionists from running for office after the Civil War. In West Germany after World War II, the very survival of a democracy was at stake if noxious candidates were not banned. Section 3 needs to be done in a way that is not straightforward. If Mr. Trump is kept off the ballot, it could be dangerous for democracy.
Part of the danger lies in the fact that what actually happened on Jan. 6 — and especially Mr. Trump’s exact role beyond months of election denial and entreaties to government officials to side with him — is still too broadly contested. The Colorado court deferred to a lower court on the facts, but it was a bench trial, meaning that no jury ever assessed what happened, and that many Americans still believe Mr. Trump did nothing wrong. The January 6 commission and the recent indictments are examples of how difficult it will be for a supreme court to affirm the Colorado ruling.
The trap the court finds itself in is largely a function of its own behavior, both on and off the bench. The conservative super majority has eviscerated affirmative action, stripped the Environmental Protection Agency of its ability to protect the environment, and eliminated the constitutional right to abortion. Over the past year there has been increasing public scrutiny of the justices’ ethical lapses, it was sunlight that pushed the justices to adopt their first code of ethics.
For a tribunal that is supposed to sit far away from, not astride, politics, that’s a lot for the Supreme Court to handle. And this is happening at a rough moment for the court. In 2000, over half of Americans approved of the way the Supreme Court was conducting itself. Recent polls show that58 percent of the population disapproves of the institution, which is historic lows for the court.
The court has agreed to hear a case asking whether Jan. 6 rioters can be charged with obstructing an official proceeding, another key part Mr. Smith’s Jan. 6 case against Mr. Trump. The former president will most likely ask the justices to reverse a ruling by the Colorado Supreme Court, which would pave the way for many states to remove his name from the ballot.
