In December 2023, the Colorado Supreme Court, in a 4-3 decision based on the “insurrection” clause of the 14th Amendment, ruled former President Donald Trump ineligible to appear on Colorado’s 2024 presidential primary ballot. Never mind that Mr. Trump has never been indicted for, let alone convicted of insurrection.
Immediately after this jaw-dropping decision, I tweeted: “Even 3 out of 7 Democrat appointed Colorado Supreme Court justices said using the 14th Amendment’s ‘insurrection’ clause to keep Trump off the ballot is absurd. Imagine how many SCOTUS justices strike down the ridiculous Colorado decision. It could even be 9-0.”
This is exactly what happened. On March 4, the U.S. Supreme Court overturned the Colorado court 9-0.
Before the Supreme Court decision, about 30 states agreed with Colorado, making the same “Trump is an insurrectionist” argument. They, too, considered Mr. Trump ineligible to appear on the ballot in their states. This means more than half the country disagreed with all nine SCOTUS justices, including left-wing Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
And there certainly is no love lost between Mr. Trump and Sotomayor. In her scathing dissent in the 5-4 decision upholding the legality of the Trump travel restrictions, often inaccurately referred to as a “Muslim ban,” Sotomayor flat out called Mr. Trump a bigot. She wrote: “Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security justifications. Even before being sworn into office, then-candidate Trump stated that ‘Islam hates us,’ warned that ‘[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country,’ promised to enact a ‘total and complete shut down of Muslims entering the United States,’ and instructed one of his advisers to find a ‘lega[l]’ way to enact a Muslim ban. The President continued to make similar statements well after his inauguration, as detailed above.”
Don’t expect Mr. Trump and Sotomayor to exchange Christmas cards anytime soon. Yet even Sotomayor said “no” to Colorado.
After the Colorado Supreme Court issued its decision, former federal judge J. Michael Luttig, generally described as “conservative,” applauded the ruling in an appearance on MSNBC. Luttig said, “Yesterday’s decision by the Colorado Supreme Court was masterful. It was brilliant, and it is an unassailable interpretation of the 14th Amendment.” He added: “This is the most pressing constitutional question of our time. And it will be a test of America’s commitment to its democracy, to its Constitution and to the rule of law for all the reasons that are coming to the forefront this morning.”
“Masterful”? “Brilliant”? “Unassailable”? Tell that to the nine justices. Consider the consequences had the Supreme Court ruled against Mr. Trump.
For starters, how many Republican state attorneys general believe President Joe Biden engaged in treason or insurrection by reversing the Trump border policies to allow nearly 8 million illegal aliens to enter the country in the last three years? How many Republican state attorneys general believe that President Biden violated the Constitution by reintroducing another student loan debt forgiveness plan after the 6-3 Supreme Court case striking down the administration’s previous program?
How many Republican state attorneys general believe Mr. Biden has been compromised by the money Biden family members received from foreign actors? True, Mr. Biden has not been charged with bribery. But Mr. Trump, as mentioned, was not charged with insurrection. Yet 30 states consider him an insurrectionist.
What’s to stop Republican state attorneys general from refusing to allow Mr. Biden to appear on their state ballot based on their belief that Mr. Biden has been compromised? What’s to stop Republican state attorneys general from refusing to allow Mr. Biden on their ballot by invoking the presidential disability amendment to claim Mr. Biden unfit given his obvious mental decline and his refusal to take a cognitive test?
How many state attorneys general consider Mr. Biden in violation of the Constitution based on what they perceive as a two-tiered justice system? Mr. Biden, they could contend, illegally possessed documents in clear violation of the law. Yet Mr. Biden, unlike Mr. Trump, escaped criminal charges.
That things could get ugly and fast explains why it was imperative for the Supreme Court to rule as it did—and to do so unanimously.
