Donald Trump now has so many court cases and legal manoeuvres ranged against him that his organisation must surely be employing someone to keep track of them. It won’t be the Donald himself, because he is a force of chaos, shoved into whatever situation his organisation has arranged for him to do his thing. It appears his businesses were pretty much run that way too, and it all just rolled over into politics.
But this week, the Trump machine is facing a forum in which it can’t do its usual schtick: the US Supreme Court, where Trump is facing a civil suit trying to remove him from the presidential ballot across the country, based on section three of the 14th Amendment to the Constitution, barring anyone who has committed insurrection from standing for the office.
The whole amendment was passed after the Civil War and includes, as section one, the “equal protection” clause, which has been the basis for most high-profile SCOTUS “social change” cases, from desegregation to same-sex marriage. The amendment was designed to ensure that the southern states did not simply reintroduce slavery, or virtual versions of it, after they were readmitted to the union.
These states managed to reintroduce segregation and voter restriction from the 1870s onwards anyway because the amendment was not enforced. The Lincoln administration and the Republican congress of the 1860s were as radical a government as the US would ever get. As the furies of war abated, people who had supported a war for the preservation of the union felt comfortable and relaxed about being plain old-fashioned racist again.
But that amendment did something more. It shifted power decisively from states to federal government and killed the last lingering sense of the original “United States”, that of an EU-like confederation. That had been abolished, after a mere five years of unworkability, with the creation of the Constitution in 1788, but a sense of strong rights for the states as the default had lingered. No more, after 1865. The US was on the road to being both colossus and behemoth.
Thus, for a certain type of “patriot”, the Constitution, or these parts of it, are part of the problem, not what they are defending. They cleave to a fantasy Constitution, believing, or acting as if they do, that states can do almost anything they like except go to war with other states (inside or outside the US). This is the sort of attitude that is driving bizarre attempts to prosecute women for “travelling across state lines” to get an abortion, from states that have banned them, as if they were bordered fiefdoms.
But this has boomeranged to a degree with the challenge of insurrection and ballot removal. Formal challenges have been filed in at least 35 states to remove Trump from the 2024 presidential ballot — arising of course from his behaviour on January 6, 2020, when a mob surged into Congress and disrupted the process of electoral college vote ratification to elect President Biden.
Last year, the Colorado Supreme Court upheld one such challenge, which is now itself under appeal. The Colorado ruling surprised many on both sides of the argument. Pro-Trumpers were predictably outraged and cried “judicial activism”, but so were many anti-Trump constitutional conservatives who believed Trump’s actions on January 6 did not meet the standard of “insurrection”, suggested by the 14th Amendment, which was clearly designed to exclude from power those who had joined government in the Confederate States of America during the Civil War.
Nevertheless, it doesn’t specify what insurrection is, and that leaves a lot of wiggle room. Trump wasn’t actually at the head of the January 6 mob — that would have meant walking somewhere — and he didn’t explicitly urge them to try and violently stop the process of government. There’s no evidence either that he actively conspired with the well-developed if addled plans by groups such as the Proud Boys to seize Congress and call for wider insurrection.
Thus, some on the left are a little nervous about this charge of insurrection too. It’s not as if occupying state buildings is contrary to our traditions — quite the contrary — and going in hard on forms of civil disobedience and property damage tends to increase the growing alignment between progressives and the disciplining state. Since local, state and federal authorities are always keen to use anti-terror, anti-insurrection, etc, laws for occupying protests, criminalising the mere urging of robust action is an unwelcome step for many — even if it was a mob trying to find vice-president Mike Pence to hang him, or because of that.
There would seem to be little danger that the Supreme Court would do that. There’s a comfortable 6-3 “constitutional conservative” majority on the court, who have shown themselves more hostile to federal claims to action than any bench in the past decades. They will be hearing the appeal against the Colorado case, which was brought by a former Republican voter Norma Anderson and five others, and was known at that level as Anderson v Griswold.
In the SCOTUS, it’s Trump v Anderson, with team Trump arguing, among other sallies, that the president of the US is not an “officer” in the 14th Amendment’s meaning. Trump already has a separate case coming through claiming total immunity of action for a sitting president, the old Nixon defence. This was rejected by a lower court today, and team Trump now has to hope the Supremes will pick it up for review, which they are under no automatic obligation to do. There is also a third case in lower courts using a separate law (the Sarbanes-Oxley Act) regarding executive conduct that is way too complex to go into.
The perceived odds of this Supreme Court upholding an insurrection challenge have seemed so unlikely that the matter was barely discussed until the explosive Colorado result. The SCOTUS will presumably deal with this matter quickly — and if, as suspected, it knocks it on the head, it will probably be in a form that undermines all the state challenges too (once again, paradoxically).
But by now we surely know not to assume anything at all in US politics. What was, through the Cold War and after, one of the most stable political systems has now become one of the most unpredictable. This is because so many dead provisions of the Constitution have been brought into play. The Constitution is as much a randomiser machine as it is an organic expression of a set of social values. Consequently, from time to time it spits out rulings — banning prayer in public schools, for example — so at odds with the everyday conduct of life that a distinct politics emerges.
On the other hand, politics is politics, and the US is good at showing how the state of exception works — as it did in Bush v Gore in 2000, when it ruled, with a 5-4 vote, a conservative-liberal split, that vote counting should stop in Florida, but that this decision should, unprecedentedly, not be taken as precedent. Now that was a slick move. When the late chief justice Antonin Scalia was repeatedly berated about it, he eventually replied, in technical jurisprudential terms, “Get over it.” Get over it.
Should the incredible happen, and Trump be barred from the ballot, will that enrage his base and his wider group of sympathisers to a genuinely destabilising fury, which opens up a new round of, well, insurrection? Or will it pop the Donald, deflate this giant, flying baby once and for all, with his base isolated in their rage, and his sympathisers looking for someone else to attach themselves to? We don’t know, and we’ll probably never find out, but as we have said before, watch this space.
Would a Supreme Court presidential ban put the brakes on Donald Trump? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
