Spotlight on SCOTUS: Trump and the Political System on Trial in the US

by Rajan Philips

SCOTUS, the Supreme Court of the United States, is the most common coinage that is currently in political circulation in the US. On Thursday the Court heard oral arguments in the Colorado case, Trump v. Anderson. The case involves Donald Trump’s appeal of the Colorado Supreme Court ruling disqualifying him from being a candidate in the State of Colorado for the US Presidential election on account of his involvement as instigator in the 2021 January 6 insurrection at the US Capitol in Washington, to prevent the ratification of the (November 2020) election of Joe Biden as President by the US Congress.

Come Monday, the Court will have to deal with another Trump appeal – against the February 6 ruling of the United States Court of Appeal for the District of Columbia Circuit, rejecting Trump’s claim of absolute immunity for ever from criminal prosecution for actions during his time as President.

The Appeal Court’s ruling dismissed Trump’s interlocutory appeal against his four-count Indictment in the Washington District Court on account of his actions challenging the 2020 election results and interfering with the process of certification of the results by the US Congress on January 6, 2021.

An American Labyrinth

To be clear, the case in Colorado was brought by a group of Republican voters led by Norma Anderson, a 91-year old former Republican State Legislator. The group was seeking to stop the Colorado Secretary of State from placing the name of Donald Trump on the ballot for the State’s Republican presidential primary election for nomination of the Republican candidate for the presidential election in November. The group claimed that Section 3 of the 14th Amendment of the US Constitution disqualified the former President from seeking the presidency in 2024, because he had engaged in insurrection on 2021 January 6, after swearing an oath as President to support the US Constitution.

The 14th Amendment to the Constitution, adopted in July 1868, is a product of the post-Civil War era, and Section 1 of the Amendment is one of the most consequential and litigated provisions of the US Constitution. Its many clauses have been used to extend civil liberties to African Americans, enable abortion and gay rights, and enforce equal protection and due process requirements.

The Amendment also includes one of the most dormant parts of the constitution, i.e., Section 3, which forbids former office holders, who violate their oath of office to support the constitution by participating in an insurrection or rebellion, from holding office again.

Its historical purpose was to prevent former confederates from becoming elected or appointed officials in the federal and state governments after the Civil War. There has only been one judicial pronouncement on Section 3 soon after the adoption of the 14th Amendment, and only one instance of its application to disqualify a person in election.

That was in 1919, when Section 3 was invoked to prevent Victor Berger, an Austrian American and a founding member of the Socialist Party of America, from assuming his seat in the US Congress after winning elections twice, in 1919 and 1920, from a district in Milwaukee, Wisconsin.

Berger had been previously elected twice and served as a Congressman, becoming the first Socialist to enter the US Congress in 1910. His later disqualification arose on account of being convicted under the Espionage Act for anti-war writings during World War 1. His expulsion was overturned by the US Supreme Court and Berger went on to serve as a Congressman for three terms after winning three elections in the 1920s.

Almost a 100 years later, Section 3 has been invoked in Colorado to challenge Donald Trump’s qualification as a presidential candidate. Trump is palpably more disqualified than Victor Berger ever was, but the legal opinion on the matter is strongly divided. And those who disagree with the disqualification school are more concerned about the practicality of enforcing it and they would seem to prefer the easier alternative of leaving it to the voters to have the final say.

That apparently is the democratic way. But that would be treating Donald Trump differently, and perhaps deferentially, from others. Needless to say, many Democrats, including Democratic States, such as California, disagree with the approach taken by Colorado, even the action in Colorado was triggered by Republican voters.

Unlike the Colorado case, the case against Trump in the Washington District Court has been brought by independent Special Counsel Jack Smith appointed by the US Justice Department. Remarkably, the Washington case that indicts Trump on four counts for his actions challenging the 2020 election results and for interfering with the process of their certification by Congress, makes no mention of insurrection or Section 3 of the 14th Amendment.

It is a straightforward criminal case and Trump’s challenge of the indictment is on the grounds of presidential immunity. The District Court rejected his challenge, and the Federal Court of Appeal has now endorsed the lower court’s rejection. Trump has been given till Monday to appeal this ruling to US Supreme Court.

Looking for an Off-Ramp

Pundits and court watchers are predicting SCOTUS to overrule the Colorado decision, that would enable Trump to be a presidential candidate in November this year. For a third time in a row, a first after Franklin Roosevelt during World War II. The Court is equally expected to uphold the Federal Appeal Court ruling rejecting Trump’s immunity claim, potentially without even a hearing. Even a rare unanimity among the judges is expected in both cases.

In the Colorado case, the Court is expected to rule against the State for practical reasons, sidestepping the grounds Trump’s appeal is based on. In the immunity case, the judges are expected to quietly endorse the ruling of the Appeal Court which has been widely praised as a judicial tour de force in constitutional rulings.

In effect, the two SCOTUS decisions would leave Trump continuing as a candidate with his legal jeopardy continuing alongside. In the best case scenario for the American political system, Trump will be defeated in the November election and that should end the phenomenon of Trumpism in American politics, but not necessarily the end of the forces in American society and their grievances against American elitism and establishment that Trump has been able to mobilize and sustain through three US election cycles.

In the worst case scenario, Trump will win the election and all chaos will break loose. But it will not be the end of the world for America, and there could be a new America at the end of four years if a second Trump presidency were to last a full term surviving its own endemic chaos.

Without question, there would be irreparable setbacks and irreversible changes, mostly on the external front. America will be isolated from the outside, and it would be a wholly different isolationist experience from the internally inspired desire for isolationism that is part of the American political tradition.

Trump doesn’t belong to that tradition or, for that matter, to any positive tradition in the country. The worst case scenario for America could also be the best case scenario for Benjamin Netanyahu in Israel, if he were to last that long in office; and to a lesser extent for Vladimir Putin in Russia, who would likely outlast all his western detractors.

It is fair to assume that all of the nine Supreme Court judges would be hoping the November election would see the defeat of Trump and create the best case scenario for their county. That includes not only the liberal leaning, Democratic appointees on the Court (Sonia Sotomayor and Elena Kegan, both appointed by President Obama; and Ketanji Brown Jackson, appointed by President Biden), but also the two archetypal conservatives (Clarence Thomas, appointed by President George HW Bush; and Samuel Alito, appointed by President George W Bush); the three Trump appointees (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett); not to mention the beleaguered Chief Justice of the ideologically divided Court, John Roberts, appointed by President George W. Bush.

That all of them are leaning towards dismissing the Colorado is the inference of almost all pundits and commentators after listening to oral submissions by lawyers appearing for Trump and the Colorado petitioners and the tones and lines of questioning by Justices. Some of the sharpest questions came from two liberal Justices, Elena Kegan and Ketanji Brown Jackson – the newest Justice on the Court and appointed by President Biden.

Justice Kagan is considered to have hinted at a potential ‘off-ramp’ on which all the justices could agree. And that involves what Justice Kagan called the “broader principle” of state and federal powers.

She contended that while “states have great power over many different areas” in the American federal system, “there are certain national questions where states are not the repository of authority,” and one of them could be the election of a president. The same point was made by the Chief Justice that allowing one state to disqualify a (Republican) presidential candidate now could have the effect of enabling other states to disqualify a Democratic presidential candidate in a partisan tit for tat in the future.

For all justices, the practicality of the remedy seemed to outweigh the legal question involving Trump’s candidacy in terms of Section 3 of the 14th Amendment. And the Justices’ questioning seemed to indicate any illegality of Trump’s candidacy could only be addressed by the Congress after his election. That would be akin to asking the Congress to do what Trump is now being accused of asking the Congress to do against Joe Biden after the 2020 election.

Jason Murray, the young lawyer appearing for the Colorado petitioners, acquitted himself very well against some tough questioning by Justices during the oral hearing. Later on in media interviews, Mr. Murray acknowledged the tough questions he faced, but pointed out that he faced the same questions before the Colorado Supreme Court. He said he is hopeful that as with the Colorado judges, the Supreme Court Justices would also have to deal with the illegality of Trump’s candidacy in spite of their initial skepticism about the practicality of doing it.

Donald Trump is facing multiple indictments, involving numerous charges, in multiple courts. Perhaps no American before him, let alone a former President, has been simultaneously implicated in so many litigations. At the same time, even as he is mired in multiple cases, Donald Trump has also put on trial the entire American political system.