Thank you for the interesting summary. Not meaning to be rude and maybe I didn't understand what you are saying properly, but I don't see the part about how the supreme court will avoid the question.
There is a very good chance that the Supreme Court will find a way to avoid the question, and I have a suspicion how they will do it.
I am not an attorney, and do not know much about lawyering, but it seems to me that if it is a requirement, like being at least 35 years old and being a natural born citizen, it is pretty obvious how Trump manipulated his followers to commit insurrection and attempt to stop the change of power in our government that day. Thus, he did take part in the insurrection - a large part!
And, I do believe they will avoid the question and ignore the constitution and it will be interesting to see how they do it. And another piece will fall in to place for Trump to make his way to dictatorship in America.
You are right, I hadn't gotten to that part, yet. There are just so many issues to address, it is hard to even list them all!
The dilemma I see for the Court is this: it only takes 4 votes to accept
Certiorari, and there are diametrically opposed motivations for doing so. Chief Justice Roberts, in particular, will want to reach unanimity on such a weighty issue, and that will be extremely difficult given the sharp ideological differences on the Court , and the myriad of issues to resolve. As Jennifer Rubin put it in
You can bet on the Supreme Court’s abject partisanship (WaPo): "By any objective reading of the Constitution, four-times-indicted former president Donald Trump should be disqualified from holding office under Section 3 of the 14th Amendment. The U.S. Supreme Court will have a hard time reversing the Colorado Supreme Court’s decision applying Section 3, but that doesn’t mean it won’t."
"While the court could wade into the substance – either endorsing the Colorado Supreme Court finding that Trump "engaged in insurrection" on Jan. 6, 2021, or overturning it with a contrary analysis of the facts – a swift narrow or technical decision may be the most advantageous approach for a court looking to avoid being cast as interfering with the election."
Might the Supreme Court try to sidestep key Trump 14th Amendment questions? ANALYSIS (abc)
Here are some of the "ducks" they might employ:
1) The
easiest, and least satisfying "off ramp" for the Court - but one that they take all too frequently - is to determine the issue is not yet "ripe" at the "access to the ballot" stage. Or that the Petitioners didn't have "standing" to raise the issue. That may indeed have been the motivation for some of the Justices to accept
Certiorari, since the cases below are effectively "stayed" awaiting their determination. Like Trump, they are big fans of delay. Why decide today what can be put off to tomorrow?
The NRSC is urging that position: "Even if the Colorado Supreme Court were correct that President Trump cannot take office on Inauguration Day, that court had no basis to hold that he cannot run for office on Election Day," [Former Trump Solicitor General Noel] Francisco wrote in a friend-of-the-court brief on behalf of the National Republican Senatorial Committee." (Same source)
2) They may see this as a "political question", best left to the vicissitudes of elections and Congress to decide (through the election processes), and hope that it becomes moot because
Trump might not get elected. I think that is a cop out, but something they are prone to do, nonetheless. I can see them using all kinds of platitudes to say that it is the "most democratic" solution.
"There's a fairly good chance that they'll find a way to duck that," said Harvard Law professor emeritus and constitutional scholar Laurence Tribe. "They'll say it's a political question, not for us, for the voters. Or, they might try to say it's ultimately a constitutional question for the voters to decide." (Same source)
I think that is the weakest, and most dangerous, position to take, because it puts an insurrectionist closer to actually getting power again. After all, it was on that very stage that January 6, 2021 occurred. It would be
inviting a repeat. It is also the same excuse that the Senate used to duck the second Impeachment.
3) They may also determine that it is an issue that has to be resolved at the federal level, since this is a federal office, thus distinguishing many of the previous cases which dealt with State officers, and remand it for such consideration below. I think this, too, is a cop out, and inconsistent with the provisions of the Constitution. But being consistent with the Constitution is, of late, not their forte.
4) They may also say that it is up to Congress to set a standard for what constitutes disqualification - that Section 3 is not "self-executing" - even if that is completely the
opposite of its history and intent. The argument that "he hasn't been convicted" is frequently raised by Trump apologists, but that has never been the standard - or expected standard - in Section 3's history. ("contrary to Trump apologists, there is no requirement in the text requiring a conviction before the disqualification. Had the framers intended to make that a precondition, they surely would have said so." - Rubin)
That position is also implicit in the RNC argument, and, again,
extremely dangerous. Congress is completely unfunctional right now. Do you think they could make such a weighty decision when they can't even pass a budget?
It's also really bad
analysis, because the
language presupposes that a determination of "insurrection"
has already been made as it is up to Congress to
remove that disability, so it's begging the question, "who decisdes?". But, again, pushing difficult questions back to Congress is something that this Supreme Court is wont to do.
As Jennifer Rubin puts it: "An honest originalist would be compelled to agree with the Colorado Supreme Court. Our democracy disallows certain candidates for president — e.g., foreign-born people, insurrectionists. As constitutional scholar Rep. Jamie Raskin (D-Md.) said on CNN’s “State of the Union,” “I have got a colleague who’s a great young politician, Maxwell Frost. He’s 26. He can’t run for president. Now, would we say that that’s undemocratic? Well, that’s the rules of the Constitution. If you don’t like the rules of the Constitution, change the Constitution.”"
