The US Supreme Court has granted certiorari to hear Trump's appeal from the Colorado Supreme Court decision to bar Trump from being on Colorado's presidential ballot.
The US Supreme Court is likely to overturn the Colorado Supreme Court, but such overturning will be for political reasons. This is the irony because the usual argument is that barring Trump from the ballot was political. Yet, as I made clear in my December 31, 2023 post, it will be hard for the US Supreme Court to deny Trump was a key person in the January 6, 2021 insurrection, and that it was an insurrection. They will also not be able to refute the fact that Trump spread the lie there was massive voter fraud in the election he lost and that he had somehow won--but in fact lost the election.
The US Supreme Court majority at least will likely hold the 14th Amendment section 3 is not self-executing so that it must be Congress which must act. However, this is ridiculous when there is no material dispute of fact of the Big Lie and Trump's role in the insurrection, making the situation not any different than a court or secretary of state finding the proposed candidate is not going to be age 35 by the time of a presidential inauguration or is otherwise not a natural born US citizen.
Another basis to reverse the Colorado Supreme Court is to say it is a "political question" which means the Courts should simply not get involved in a dispute deemed political, not legal. Yet, that basis itself is political because the facts are materially undisputed and so there is no reason for the court to deny the reality of those facts. The "political question" doctrine is, in any event, to be sparingly used and is not a bedrock rule of law in practice.
In addition, the politically minded six right wing justices could simply end the applicability of the 14th Amendment, section 3. They could hold the 1872 Congressional act that granted a blanket amnesty to all who supported the Confederacy means section 3 is a dead letter. This was an interpretation initially believed by at least the court in the Majorie Taylor Greene lawsuit, but three law review articles, each doing a deep dive into the history of the amendment and that congressional act, have shown that position to be historically wrong.
I would only be surprised if the majority of Justices held Trump, as president, is not an "official of the United States." The Colorado Supreme Court's analysis of that argument should be conclusive in rejecting that argument. I note, too, none of the dissenters on the Colorado Supreme Court challenged that particular conclusion. As understood at the time, what use would the amendment section be if say Jefferson Davis was barred from every federal office but could run for president or vice president? Also, the amendment section does mention Senators and Representatives. But that is because, in the US Constitution, such are called "members," not "officials."
If a majority of the Court had integrity and wanted to truly protect and maintain the US Constitution, it would hold that Trump (1) made an oath to protect and maintain the US Constitution, (2) never offered a meritorious defense for his statements and actions, and (3) spread lies about the election result and thereafter precipitated an insurrection to stop the constitutionally mandated presidential transition. Thus, a Court with integrity would hold Trump is correctly barred from regaining any federal office or being a member of the Congress unless 2/3rds of Congress votes to allow him to do so.
Note that last part. Under the last sentence in the 14th Amendment, section 3, it is possible enough Dems could join all Republicans in the US House of Representatives and Senate to reach the 2/3rds. That would be the irony of ironies in the litigation now pending. I would hope enough Dems would see that as both morally wrong and worse, normalizing insurrectionist behavior on top of a Big Lie.
