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Will the Supreme Court Sanction Violent Overthrow of Our Government?

By Jessie Seigel /February 4, 2024



The current Supreme Court Justices


The Supreme Court is in a pickle now.

 

In December, Colorado and Maine each made a determination that former president Donald Trump is ineligible to run for president or to be on their states' primary ballots due to his involvement in the January 6, 2021 insurrection. Officials in some Republican-controlled states are threatening to retaliate by taking President Biden off the ballot in their states. If the 2024 election is not to become a chaotic free-for-all among the various states, a decision applying to the entire country is needed. Accordingly, the Supreme Court will hear arguments this Thursday on whether the Constitution’s insurrection provision will or will not keep Trump off the ballot.

 

Many in the media are suggesting that the Court is reluctant to step into the middle of a matter so fraught with political implications, especially during an election year. And there is non-stop speculation on what the Court may do to avoid taking a stand that will have a political effect. But any Supreme Court decision—whether for or against Trump--will have serious political implications.

 

Furthermore, the conservatives on the Court have not shied away from issuing extremely political decisions in the past, albeit thinly veiled by a pretense of legal analysis. This has been true as far back as 2000, when the Court handed that year’s presidential election to George W. Bush by stopping a recount of votes in Florida.

 

The Court's so-called reasoning in Dobbs v. Jackson Women's Health Organization, overturning 50 years of precedent by overruling Roe v. Wade, was transparently political.

 

And one of the six right-wing justices, Clarence Thomas—whose wife actively supported the January 6 insurrection—has refused to recuse himself from several cases concerning the effort to overthrow the results of the 2020 presidential election.

 

Add to that the reticence of Chief Justice John Roberts to enforce any ethical standards, and it becomes difficult to expect or trust that the Court’s decision in this instance will be the result of an honest weighing of scholarly legal considerations rather than the cynical sophistry for which the Court has recently become infamous.

 

To examine all the arguments the Court could seize upon would be exhausting. Nevertheless, it would not be amiss to prepare for what may come by assessing some of the arguments it will be called upon to address.

  

The Constitution's Insurrection Provision


Section 3 of the 14th Amendment to the Constitution states that no person shall “hold any office, civil or military, under the United States” who, having previously taken an oath “to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”


Under Section 3, that disability can only be removed by a two-thirds vote in both the Senate and the House of Representatives.


Last November, based on a week-long trial, Denver Colorado District Judge Sarah B. Wallace ruled that Trump had engaged in insurrection. But she also ruled that Section 3 does not apply to those running for president and therefore he could remain on the ballot in Colorado’s Republican primary.

 

Trump appealed the ruling that he had engaged in insurrection. Those who had brought the suit appealed the determination that Trump could remain on the ballot.

 

Subsequently, the Colorado Supreme Court reversed the state district court’s determination that Section 3 does not apply to those running for president.

 

In December, Maine’s Secretary of State, Shenna Bellows, also applied Section 3 to deny Trump the primary ballot in Maine, writing that the facts of his involvement in the January 6, 2021 insurrection were not in dispute. 

 

However, both Colorado and Maine have put their rulings on hold pending the Supreme Court’s determination.


Trump’s Arguments to the Supreme Court

 

In their brief to the Supreme Court, Trump’s lawyers have argued that Section 3 does not apply to Trump because the president is not one of the officials covered by that section. They maintain that “The president is not an officer of the United States as that term is used in the Constitution.”

 

According to the New York Times, their brief adds, “To accept the Colorado Supreme Court’s assertion that Section 3 includes the presidency, one must conclude that the drafters decided to bury the most visible and prominent national office in a catchall term that includes low-ranking military officers, while choosing to explicitly mention presidential electors. This reading defies common sense.”

 

Trump’s lawyers are also hanging their argument on the fact Section 3 refers to those who took an oath to “support” the Constitution of the United States, while the president swears an oath set out in Article II, promising to “preserve, protect, and defend the Constitution of the United States,” and does not mention the word “support.”


Contrary to the Trump arguments, the presidency is an office. And serving in it, Trump is an officer.  


Furthermore, Section 3 does not specify the words of the oaths to be taken. And a requirement to “preserve, protect and defend” certainly involves support; indeed, requires even more than simple support.


And as for what “defies common sense,” the majority of the Colorado Supreme Court stated:


President Trump asks us to hold that Section 3 disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section 3.


Next, the Trump brief argues, “there is no legal basis for imputing the conduct of others to President Trump.” Disingenuously, it claims that he did not participate in or direct any of the illegal conduct at the Capitol. Laughably, the brief maintains that Trump “repeatedly called for peace, patriotism, and law and order.”


But as Maine’s Secretary of State wrote:


The record establishes that Mr. Trump, over the course of several months and culminating on Jan. 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them to the Capitol to prevent certification of the 2020 election and the peaceful transfer of power.


She added, “The weight of the evidence makes clear that Mr. Trump was aware of the tinder laid by his multi-month effort to delegitimize a democratic election, and then chose to light a match.”


The Trump brief also has the temerity to argue that the former president’s January 6 speech was free speech protected under the First Amendment to the Constitution.


Clearly, Trump and his attorneys don’t know the difference between free speech and incitement to violence.


Under the 1969 decision in Brandenburg v. Ohio, speech is not protected under the First Amendment if it is intended to produce imminent violent conduct and is likely to do so. In fact, under federal law (18 U.S.C. section 2101), one’s speech can result in him or her being charged with inciting a riot, organizing, encouraging, or promoting a riot, or aiding and abetting others to do so. Certainly, Trump’s speech on January 6, and his behavior and tweets during the attack on the Capitol constituted an incitement of the attack. He was observing his handiwork on television and egging his supporters on.


Finally, exhibiting the height of sophistic absurdity, the Trump brief argues that though section 3 disqualifies insurrectionists from holding office, it does not prohibit them from seeking office. Theoretically, if the candidate were elected, Congress could remove the disqualification before the candidate’s term began.


But if someone is not qualified to hold the office, how can they be a qualified candidate? The logical extension of this view would be that those who do not meet the other Constitutional requirements for serving—age, residency, citizenship—could not be kept from running for president. 

 

The Politics of the Supreme Court’s Considerations


In making its finding that Section 3 disqualifies former president Trump from running for president again, the Colorado Supreme Court wrote:


We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.

 

Harvard University history professor Jill Lepore told the Washington Post, “Republicans in Congress have essentially forsaken their constitutional duty…Do I wish they had not? Yes. But that doesn’t change the plain language of the Fourteenth Amendment, which disqualifies Trump. You may not like it. I may not like it. Who knows, the majority of the country may not like it. But that the majority of the country does not like it or even that it has not heard of it is not an argument against it.” (For the Court’s professed originalists, there are at least two Federalist Society members who maintain history backs this position.)  

 

I tend toward Lepore’s view. The courts should do what the law requires. Nevertheless, one must recognize that there will be severe political repercussions if the chosen candidate of one party is not permitted to run. 

 

In a Washington Post interview, New York University law professor Samuel Issacharoff  stated that although he believes Trump is a danger to democracy, he thinks “there’s another danger to democracy, which is the exclusion of candidates who the people want to vote for.”

 

The Post also noted that four voters in Illinois have already asked their state elections board to take President Biden off the ballot, arguing that he violated Section 3—giving aid to the nation’s enemies by not stopping illegal immigrants from crossing the border into the U.S. Of course, to call illegal immigrants enemy invaders is a denigrating metaphor that amounts to political retaliation. But the country is likely to see more of it.

 

Chris Christie told the Washington Post that he thinks it is inappropriate to punish Trump for inciting the insurrection absent a criminal trial on the matter. However, historically, a criminal trial has not been required before application of Section 3.


Recently, the Court has come into disrepute even with Republicans, some of whom have been arguing that they can defy or ignore Supreme Court decisions. There surely will be a backlash if the Court finds against Trump.

 

On the other hand, a finding for Trump will not only further erode the Court’s legitimacy, it will sanction insurrection as a method of obtaining power.

 

One could appeal to the Supreme Court to show the courage of conviction and honestly address this matter—as the Colorado Supreme Court put it— “without fear or favor.” But to do so, one would have to believe that the six right-wing justices that comprise the Court’s majority have convictions other than self-interested pragmatism. And that’s a long shot.



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2 Comments


Guest
Feb 05, 2024

Thank you..historic..maybe the legacy of their vote will compel a better than partisan decision.


I like to read the dissenting opinions, they are sometimes more validating in law

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Guest
Feb 05, 2024
Replying to

I agree, especially about the dissents these days! Jessie

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