On the Colorado decision, expect SCOTUS to punt

If it doesn’t overrule, Brynn Tannehill told me, “Trump supporters are going to lose their minds, especially if President Joe Biden wins again, setting us up for another January 6-like scenario, where red states refuse to acknowledge the legitimacy of the executive branch.”

As you know, the Colorado Supreme Court ruled on Tuesday that Donald Trump is disqualified from appearing on the state’s Republican presidential primary ballot on account of his involvement in the J6 insurrection. The decision was explosive, but I want to break things down in plain English, because that’s what the Editorial Board does.

First, it was probably the right decision. Though I’m not an attorney or a constitutional scholar, it seems to me that any plain-English interpretation of the insurrection clause of the 14th Amendment should bring you to conclude that no, yeah, Trump really is an insurrectionist, and should be barred from holding office again.

“President Trump is disqualified from holding the office of president," Colorado’s high court decided in an unsigned opinion. "Because he is disqualified, it would be a wrongful act under the election code for the secretary to list him as a candidate on the presidential primary ballot."

Second, this ruling is going to affect future rulings. There are dozens of similar cases pending, many of them brought by Citizens for Responsibility and Ethics in Washington, which brought the Colorado suit on behalf of four Republican voters and two unaffiliated voters.

"We do not reach these conclusions lightly," the court’s 4-3 majority went on to say. "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."

Third, the ruling seems to have been written knowing that the US Supreme Court will hear an appeal. It leans heavily into a decision made by Justice Neil Gorsuch when he was appellate court judge for the 10th Circuit. That ruling, Hassan v. Colorado, was about a Colorado law that enforced the US Constitution’s requirement that presidential candidates be “natural-born citizens.” Judge Gorsuch said that Colorado had the right to defend its “legitimate interest in protecting the integrity and practical functioning of the political process.”

That’s the good news. The bad news is, well, bad, according to Brynn Tannehill, author of American Fascism: How the GOP is Subverting Democracy and a contributor to The New Republic. In a widely read thread on Twitter, she explained that even if the Colorado ruling is the right one, and she thinks that it is, the political consequences are probably going to be dire. In a follow-up interview with me, she outlined a damned-if-you-do, damned-if-you-don’t situation.

“It probably comes out badly, no matter how they decide,” Brynn told me. “If they overturn, they undermine faith in the Supreme Court with people who oppose Trump. If Trump goes on to win, they'll see both Trump and the courts as illegitimate, and be more likely to defy both.”

But if they don’t overrule, Brynn went on to say, “Trump supporters are going to lose their minds, especially if President Joe Biden wins again, setting us up for another January 6-like scenario, where red states refuse to acknowledge the legitimacy of the executive branch.”

Brynn concluded: “If the court upholds and Trump wins anyway, we're still in a dictatorship. If the court overturns and Biden wins, the GOP isn't going to accept the results (but they'll be less likely to blame it on the courts). Best-case scenario is Trump losing, period. He's made it increasingly clear that he intends to rule as a dictator, and anything that cuts into the chances of that happening is a good thing.”

I want to add a few more thoughts. While the most likely scenario is a unanimous decision overturning the Colorado ruling, the Supreme Court does have a high inventive to not get involved. Its reputation is already in tatters. Striking down Roe was the beginning of that. Subsequent scandals involving corrupt conservative justices (namely Clarence Thomas and Samuel Alito) has deepened the problem. If there’s a way for this court to avoid settling the question of whether Donald Trump is an insurrectionist, it’s interested in finding it.

Indeed, the Colorado Supreme Court stayed its own ruling while the question is elevated to the US Supreme Court. That means Donald Trump’s name will remain on the ballot for that state’s Republican presidential primary until the highest court decides. It will remain on the ballot for the general election until then. Now, I’m not an attorney or a constitutional scholar, but it seems that any future ruling that finds that Trump is disqualified will do what the Colorado court did and keep things as they are until the US Supreme Court steps in.

Which means the US Supreme Court can stall for time. The Colorado primary is in March. That’s easy. Same for the other pending cases. The justices could sit on their hands for all the spring. The general election is a different matter, but the court isn’t beholden to anyone else’s schedule. Indeed, I would guess that the same pundits who are now saying that voters should decide the election, not the courts, would be willing to defend the Supreme Court for taking its time.

The Supreme Court would have to decide at some point, I presume. That’s where stalling comes in handy. The court could wait and see what the outcome of the election is, then rejigger a ruling that fits. So if Trump wins, then he’s not an insurrectionist. If Biden wins, then he is. This won’t please all the people all the time, of course. Many of the potential, and potentially violent, problems Brynn points out could still happen. But from the court’s view, that might be a best-case scenario.