Colorado case could either repair SCOTUS’ image — or inflict 'another grievous wound': analysis

21 December 2023

When the Colorado Supreme Court ruled that former President Donald Trump is disqualified from the state's ballot under Section 3 of the U.S. Constitution's 14th Amendment, the decision was applauded by anti-Trump legal voices on both the left (Elie Mystal) and the right (George Conway). However, former U.S. Attorney General Bill Barr — a one-time Trump ally turned critic — disagrees with the decision and told CNN's Jake Tapper it will ultimately benefit Trump, who, he notes, thrives on "grievance."

Trump and his legal team have vowed to fight the decision and take it all the way to the U.S. Supreme Court. And the progressive Mystal believes the Roberts Court will act along partisan lines and strike down the Colorado decision even though, Mystal says, the 4-3 ruling was legally sound.

In an op-ed published on December 20, the Daily Beast's Shan Wu argues that the Colorado case could clean up the U.S. Supreme Court's battered image — or inflict "another grievous wound" on it.

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Under Section 3, "officers" are disqualified from office if they have engaged in "insurrection" — which, Trump critics argue, is what he did when he tried to overturn the 2020 presidential election results despite clearly losing to now-President Joe Biden. One of the leading proponents of the argument that Trump cannot legally hold office again is conservative J. Michael Luttig, a retired judge.

"Numerous cases have been filed around the country seeking disqualification of Trump under this theory," Wu explains. "The historic nature of the case also offers SCOTUS an opportunity to counter its historic loss of credibility in the eyes of the American people, brought on by the ever-growing arrogance of its conservative majority. First, they could simply decline to hear the case, or at least decline to hear it immediately and leave the disqualification in place."

Wu continues, "This makes a great deal of sense legally, since states run their own elections under the Constitution, although it is hard to imagine the justices — both liberal and conservative — will be able to restrain themselves from the opportunity to speak out at a historic moment. Second, and more likely, they could take the case on an expedited basis and affirm the disqualification, but limit the ruling to the factual basis made by the trial court in Colorado."

It would be better for the High Court to "sit this one out" instead of "wielding their power in the service of conservative billionaires and the causes they support."

"Historically, SCOTUS has protected its treasure of credibility by being stingy," Wu argues. "Stingy in the cases it takes and stingy in the breadth of their rulings. A return to that practice would be wise in this case. To do otherwise would be yet another step in consolidating the Court's power as the most powerful branch of government. It would also be another grievous wound to the integrity of the institution."

Shan Wu's full Daily Beast op-ed is available at this link (subscription required).

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