🤔 🧐

 I’m overthinking this, but how does the Supreme Court rule on the application of clause 3 of the 14th Amendment? I don’t mean how they reason out their conclusion, but what are their options? Court opinions are not law review articles; they have actual consequences. What would the consequences of a Supreme Court decision be?

1) Overrule Colorado (and Maine) because that’s not what the Amendment says? Sure, they did that with the VRA, but that was a statute implementing the 15th amendment. Gutting the VRA didn’t require gutting the constitution proper. How does the Alito court gut the 14th?

I suppose they could rule the 14th doesn’t apply in this case, the first time it could apply since the Civil War. But that’s effectively gutting the Amendment. And on what basis does it not apply? Trump hasn’t been convicted of “insurrection”? He can’t be, since that’s not a crime. Due process only requires a hearing in a court of competent jurisdiction. Trump had that. Does “insurrection” in clause 3 mean sedition, or treason? Why doesn’t it specify those crimes? Why doesn’t it specify a separate conviction at all, like the impeachment clause that allows the impeached official to be barred from federal office for life once they are removed from office? Even originalism and textualism require keeping to the whole language of the Constitution, without adding or subtracting provisions. Change the language, change the outcome; but you can’t change the language.

This isn’t a brief on constitutional law, but the basic principles apply.

From what I understand, the Congress actually voted to allow former Confederates to return to federal offices, in accordance with the provisions of the 14th, so there is precedent for applying the qualifications of the Amendment without requiring a criminal conviction for “insurrection.” If the Court is concerned about due process, the Colorado courts held a trial and received evidence upon which to base their decision.

And that brings us to federalism. As I said before, states determine ballot access, within the requirements of due process and equal protection of law (also provided by the 14th).  Maine allows its SOS to determine access questions, but that can be appealed to the courts, so due process is still provided. Both methods, IOW, pass constitutional muster. Colorado provided Trump due process, as well. So, again, what do the Supremes do?

2) If the Court doesn’t toss out the 14th, what do they rule on?  By which I mean, what do they rule? That states can’t determine ballot access after all? Or can, but not in applying the 14th this way? How does that work? Something akin to Bush v Gore? By which I mean bigfooting states again with a ruling that’s basically: “We’re the Supreme Court, bitches!”?

That might appeal to Alito and Thomas, but I don’t think the rest of the court wants to go there.

3) So the court throws out federalism, or it eviscerates the 14th. What are the other options if it takes cert. on the Colorado decision? It could leave the opinion intact; but it can do that by denying the appeal. It’s not even a question of politics; it’s a question of jurisprudence. The Court either affirms the status quo of federalism in this matter, or it upends federalism and constitutional law. 

4) The Court could simply agree with Colorado’s conclusion, but prefer its own reasoning. But, again, how do they do that without putting a thumb on the political scale? If they leave the case alone, the states can decide their ballots themselves. If the Court rules, how do they not bigfoot the states on this issue only? And how is that not a blatantly Bush v Gore level self-own? Yeah, they can expressly say Colorado got it right, but that would mean adopting Colorado’s reasoning, elevating it to a Supreme Court decision. Letting it stand would obviate that issue and still leave the issue to the states, where it belongs.

There’s also the factor that Maine’s decision hasn’t reached the courts yet, so it really isn’t ripe for Supreme Court review. There are different opinions in state courts about the application of the 14th, but some of those could be on the facts, not on interpretations of the Amendment. That’s not enough to trigger the Court’s review, or force its hand. There aren’t any federal rulings on the issue, so there isn’t any conflict in the federal system that the Court needs to resolve.  They can (IIRC) review the decision of Colorado’s Supreme Court, especially since it involves Constitutional law. But then we’re back to where we started.

If the Supremes don’t leave well enough alone, they stomp all over something. What’s that supposed African proverb: “When elephants fight, the grass gets trampled.” 

You know who “the grass” is in that metaphor, right?