'Conundrum': SCOTUS conservatives face 'brutal dilemma' in choosing Trump or this favored doctrine

26 December 2023

Following last week's groundbreaking ruling from the Colorado supreme court that disqualified former President Donald Trump from the state's Republican primary ballot, the conservative majority on the Supreme Court of the United States (SCOTUS) now has a difficult choice to make, according to a Democratic strategist.

In a recent column for the Guardian, Sidney Blumenthal — who was a senior adviser to former President Bill Clinton — wrote that the Anderson v. Griswold case in Colorado will be a turning point for SCOTUS. Currently, conservatives enjoy a 6-3 majority on the nation's highest court, with three of those conservative judges having been appointed directly by Trump. As Blumenthal wrote, several of those justices have openly endorsed the judicial philosophies of "originalism" and "textualism" (which both endorse a more literal interpretation of the Constitution with less regard for context or application in modern society).

Because Trump was disqualified from the Colorado ballot on the grounds that he violated Section Three of the 14th Amendment — the so-called "insurrection clause" — due to his role in the deadly US Capitol riot on January 6, 2021, Blumenthal argued that SCOTUS conservatives' guiding philosophies would naturally mean an "open and shut" decision upholding Anderson. However, should they choose to side with Trump, that would mean discarding the doctrine SCOTUS' majority has already used to decide so many other pivotal cases.

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"The Colorado supreme court found, without disagreement, and by clear and convincing evidence, that Trump indeed engaged in insurrection on January 6," Blumenthal wrote. "On the facts and the law, the court majority faces a brutal dilemma: either uphold Trump’s disqualification or shred the doctrine on which their conservative jurisprudence stands."

"The conundrum for the court is that it can rescue Trump only by shredding originalism and textualism," he added. "There is no more originalist and textualist case to be made than this one."

University of Baltimore School of Law professor Kimberly Wehle made a similar argument in the Atlantic last week. In her essay, Wehle said the Colorado supreme court justices who disqualified Trump in the Anderson case leaned heavily on "judicial conservatism." She also pointed out the conundrum SCOTUS faces in the event it overturns Anderson: Disqualifying Trump could throw the 2024 election into chaos, but siding with Trump could do permanent damage to the Court's credibility.

"The political right, for example, has long assailed progressive judges for emphasizing the purposes behind a law when a plain-text reading would arguably suffice," Wehle wrote. "For conservative justices to abandon that hierarchy now, on a case this consequential, would destroy whatever guise of impartiality the Court has left."

Read Blumenthal's full essay by clicking here.

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