Trump at the Supreme Court

Just a quick update on the Colorado case that we looked at just before Christmas, in which that state’s supreme court ruled that Donald Trump was ineligible to be on the ballot for this year’s presidential election due to having “engaged in insurrection” within the meaning of the fourteenth amendment. This week, that case (now called Trump v. Anderson) reached the United States Supreme Court, with oral argument taking place early this morning, Australian time.

Back in December I said that the court was almost certain to rule in Trump’s favor, and that the interest would be in its reasoning. Election expert Rick Hasen started his liveblog of the hearing by saying “Everyone I know expects Trump to win because it would be politically monumental for the Court to remove a major, popular candidate, but seeing the doctrinal way to get there is hard.”

You can’t always tell much from oral argument about how the justices are thinking, but in this case they seem to have indicated pretty clearly that they are unimpressed with the case for disqualification. Hasen suggests that Trump could win 8-1 or even 9-0, with Sonia Sotomayor the most likely dissenter.

The grounds for such a decision would not be the technical and counter-intuitive suggestion that the president is not “an officer of the United States” – which the district court in Colorado had accepted, and which Trump’s lawyers argued on the appeal – but the more substantial point that the disqualification clause is not self-executing and requires (at least in respect of federal offices) some action by Congress. Exactly how they flesh this out could be very important.

Coincidentally, a distinct but related Trump matter is also in the federal courts this week: on Tuesday, a unanimous three-judge panel for the US court of appeals ruled that the former president had no immunity from criminal prosecution for his official acts. Trump will probably appeal that ruling also to the Supreme Court, although it is sufficiently clear that the justices may well dismiss the appeal without granting it a hearing.

That opens the likelihood of what Hasen mischievously calls a “grand bargain”: that the Supreme Court will assert its impartiality by giving Trump one win and one loss. It will confirm his right to be on the ballot despite the events of 6 January 2021, but also allow his criminal trial for those same events to go forward. And while in the eyes of his supporters Trump can do no wrong, it’s fair to assume that if evidence is aired in a criminal trial before election day it will hurt his chances with swinging voters.

Two other quick points of US election news this week. First, Marianne Williamson (coyly described by the BBC as a “self-help writer”) has ended her campaign for the Democrat presidential nomination, leaving Minnesota congressman Dean Phillips as the only (barely) serious challenger to Joe Biden. Her statement is fully in character, noting that she had “impacted the political ethers” and that “ideas float through the air forming ever new designs.”

And in the Nevada Republican primary on Wednesday, in which (as I explained the other day) Nikki Haley was running unopposed, she was convincingly beaten by “none of the above”, which cleaned up with 63.3% of the vote. Haley had 30.4%, while Mike Pence and Tim Scott, both of whom had already withdrawn, picked up another 5.3% between them. No delegates were at stake, but it’s a blow to the already fading morale of Haley’s campaign.