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Larry Smith

Last week the Supreme Court heard arguments from the State of Colorado, which barred former President Donald Trump from appearing on its presidential ballot. This was a highly controversial decision that inexorably ended up in SCOTUS’ hands. The two plus hours of argument rendered me speechless.

The following is a paraphrase of what, in my view, SCOTUS suggested to the plaintiffs from Colorado:

Even if your argument is correct on the constitutional question of whether Donald Trump should be disqualified for fomenting a failed insurrection – and we ain’t necessarily saying that you’re wrong – the consequences of ruling in your favor could really screw up our political system! States would find, like, a whole bunch of ways to diss candidates based on, you know, politics and stuff! We feel some kinda way about that! Besides, it’s not up to us to disenfranchise people. That’s what the Electoral College is for! Plus, we can’t have one state determine the outcome of a presidential election… unless it’s Florida. But wait! There’s more! Congress can always disqualify Trump if the Peter Principle ushers him back into the Oval. Then again, they’re just as cowardly as we are. In any event, we can’t give states the right to determine who’s on their ballots! We only allow states to determine if women can get an abortion! Well, thanks for your time. We out!”

As a professional non-lawyer, it seemed to me that Trump’s attorneys were extremely well prepared to parse words, obfuscate, and inveigle. For example, they claimed that he didn’t swear to “uphold” the Constitution. Rather, he swore to “preserve, protect and defend” it. Of course, their client insisted that “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” Apparently, the Supreme Court agrees.

It was a good show with bad form and potentially devastating ramifications. This Court is loathe to exhibit courage, leadership, or responsibility. The justices had the opportunity for an Al Haig “I’m in control here” moment. Instead, they demurred and dodged. For example, they expressed a concern that a handful of states would determine the election – which is exactly what happens every four years. As the Court dithers, our democracy hangs in the balance.

Let’s remember why the 14th Amendment was adopted. It was to keep traitors (i.e., former Confederates) from assuming office in the nation against which they had taken up arms. If the Court rules against Colorado – as it almost certainly will – what does that mean for the future? If states cannot disqualify someone based upon what the Constitution says, how can they disqualify anyone for any reason?

Breathtakingly, the Supreme Court appears not to know how to define “insurrection”. (They’re going to leave left that to all the brilliant minds in the Congress.) Suppose that Trump and his minions had been successful on January 6th. Does anyone honestly believe that he would be bothered with pesky legal questions? Here’s a fun fact: Hugo Chávez attempted a coup in Venezuela. It failed. Six years later, he became president of that country. Trump could achieve the same feat in fewer than four.

I wrote in a column several weeks ago that SCOTUS would “punt” this decision to Congress. Given the pointed nature of their questions and soliloquies against the plaintiffs, it certainly seems that will be the case. Of course, Congress could disqualify Trump if he wins this fall based on the idea that the Constitution bars him from holding office, not from running for it. But there is virtually no chance that they would do so.

This case appears to hinge on arcane legal definitions of the type over which “originalists” salivate. How many defendants have gotten off on a legal technicality, even though it is clear that they actually did commit the crime? Conversely, how many women of color are serving life sentences because they were in the car as their boyfriend killed somebody? By contrast, Donald Trump can tweet, text, and even appear on live TV to incite his followers to attack the capital – and do so with impunity? It makes no sense.

Let’s suppose that the Constitution does not explicitly bar anyone who meets its minimalist prerequisites to be president. Further, let’s pretend that there was no mention of barring anyone from holding any office. What would keep someone out of the White House even if they had murdered someone in cold blood? If you think that is a far-fetched argument, think again. That is exactly what Trump’s attorneys argued in another case.

In short, nuance, cowardice, and fatuousness are more important to this Supreme Court than the plain intent (if not quite the plain text) of the Constitution. If only SCOTUS understood that Donald Trump is much more dangerous to our nation than affirmative action is…

Friedrich Nietzsche wrote, “God is dead… And we have killed him.” Nietzsche, an atheist, arrogated to himself the authority to make such a definitive statement. If American democracy dies, “we the people” will have killed it. Some by our actions; most by our failure to act. If Donald Trump is allowed to run, and particularly if he wins the election, American democracy will have died. The Supreme Court, aided and abetted by a Congress that could have barred Trump after January 6th, will have killed it.

If President Obama had done one tenth of what Trump did… Nevermind.

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