Today at 10 a.m. Eastern time, the Republican Supreme Court will begin to hear arguments in Trump v. Anderson, concerning the electoral disqualification of the Malignant Loser based on the insurrection clause of the 14th Amendment. It's the first of two cases involving the Malignant Loser to come before the court, the second one (which the court may or may not accept) being the presidential immunity case recently decided by the U.S. Court of Appeals for the District of Columbia. In Anderson, the court will be deciding if the Colorado Supreme Court ruled correctly in disqualifying the Malignant Loser from the ballot because he violated the insurrection clause of the 14th Amendment by engaging in insurrection on January 6, 2021 (spoiler alert: he did).
Slate's Donald K. Sherman writes that this case is this generation's Brown v. Board of Education, because it tests our institutions' (specifically the Republican Supreme Court) will to enforce the Constitution even under the most difficult and dangerous circumstances:
...On Thursday, the justices will hear arguments in Trump v. Anderson, to consider whether to uphold Donald Trump’s disqualification from office given the Colorado Supreme Court’s finding that he engaged in an insurrection by inciting the Jan. 6 attack on the U.S. Capitol. As the NAACP Legal Defense and Educational Fund, which famously litigated Brown, argued in a friend of the court brief filed in Anderson, the “Reconstruction Amendments were enacted to ensure that the worst abuses in our nation’s history are not repeated and to achieve the fullest ideals of our democracy. But those Amendments are effective only when those responsible for applying them have the courage to do so.”
Of course, millions of Americans would be disappointed or even infuriated if Trump is removed from the ballot. Some may even turn to violence. But that threat is obvious given the former president’s incitement of violence after his refusal to accept the results of the 2020 presidential election. Trump’s supporters continue to threaten violence in his name, and without condemnation by the candidate. In his briefs before the Supreme Court, Trump has threatened “bedlam” if he is kept off the ballot, but the bedlam he provoked on Jan. 6 is how we got here—and why he is disqualified by the Constitution from serving as president again. [snip]
Our highest court exists to interpret the Constitution, and our Constitution ensures that the fundamental rights of our democracy persist in the face of popular resistance or recalcitrant political leaders that threaten violence, civil unrest, or nullification. The rule of law must abide—even in the face of popular political figures or popular resistance. As conservative scholars have noted, Donald Trump lost the popular vote in 2016, and thus became president only because of the Constitution and the Electoral College. Now, when the Constitution threatens his political future, Trump argues that it need not apply.
Brown and similar rulings are now part of the fabric of our nation, ensuring that all can enjoy the 14th Amendment’s promise of “equal protection of the laws.” The Supreme Court upholding Trump’s disqualification could someday be seen similarly: a difficult, albeit necessary decision that provoked unrest, but one that ensured our democratic form of government and prevented greater potential injustices. Brown was not just about Black students attending segregated schools in 1954, but similar racial segregation for generations to come. Likewise, enforcing Section 3 of the 14th Amendment against Donald Trump is less about the 2024 election than it is about ensuring that we have free and fair elections that will not be threatened by violent insurrections 50 or 150 years into the future.
There will be audio feeds of the oral arguments.
BONUS: Conservative retired judge Michael Luttig sees some legal weaseling in the future --
"The Supreme Court finds itself in a very precarious position today. Undoubtedly, it doesn't want to decide this case, and it will be looking for all legitimate off-ramps to decide that the former president is disqualified, but there are no legitimate off-ramps to that decision. What you'll see this morning at the court is the court looking, plumbing all possibilities with counsel, as to how the court can resolve the case without deciding whether the former president was disqualified."
It would take some world class hypocrisy, but we're sure there are 6 justices that can stoop to the occasion.
UPDATE: The off ramp that spineless SCOTUS is careening toward --
I think the Chief Justice is saying how the opinion reversing the CO SCt will be written: states can't disqualify federal officeholders (at least absent congressional permission to do so).
— Leah Litman (@LeahLitman) February 8, 2024
It would not be surprising to see a quick 9-0 or 8-1 ruling reversing Colorado and keeping Trump on the ballot, with Roberts writing on the federal interest, and perhaps some concurrences (Kavanaugh on Griffin, Alito and Gorsuch on "holdin" office). Sotomayor is the question mark
— Rick Hasen (@rickhasen) February 8, 2024
If this holds, it means that the decision will more likely be viewed as this generation's Dred Scott rather than Brown v. Board of Education.
