When the Supreme Court reviews Colorado’s decision to exclude President Trump from the state’s ballot, it will be delving into wholly uncharted territory.
The Supreme Court has never interpreted the constitutional provision prohibiting former office-holding insurrectionists from holding future office. Several leading constitutional scholars argue that, in part for this reason, the constitutional ban cannot be enforced without prior congressional enactment of guiding directives. The high court may consider this option to provide a welcome off-ramp.
But the position that the constitutional ban on insurrectionist office holders is not activated absent congressional legislation is not only incorrect, it also threatens the very foundations of America’s constitutional system.
I think their off-ramp is going to be to just say Trump didn’t engage in insurrection for some B.S. reason. He clearly did but Alito (like most other FedSoc judges) have no problem with ignoring the actual facts of a case and then rule on some story they made up using the people involved as characters. I could easily imagine a decision that says Trump didn’t engage in insurrection because he tried to use lawyers and a rally to pressure Congress and so his intent wasn’t insurrection against the constitutional order.
And then they’ll probably say the people who did storm the Capital can be considered insurrectionists because they’re just tawdry, regular folks who would never be invited to Bohemian Grove. People in fancy suits planning and directing the coup will be presented as the naïve ones who NEVER expected violence to break out.