The Colorado Supreme Court decision disqualifying former President Donald Trump from the 2024 ballot under the Insurrection Clause of the 14th Amendment is airtight, argued conservative attorney George Conway in The Atlantic — and one of the most telling indicators of that is how flimsy the dissents are.
"I came to adopt the practice not just for newsworthy rulings that I disagreed with, but for decisions I agreed with, including even obscure cases in the areas of business law I practiced," wrote Conway. "Dissents are generally shorter, and almost always more fun to read, than majority opinions; judges usually feel freer to express themselves when writing separately. But dissents are also intellectually useful: If there’s a weakness in the majority’s argument, an able judge will expose it, sometimes brutally, and she may make you change your mind, or at least be less dismissive of her position, even when you disagree. Give me a pile of Justice Elena Kagan’s dissents to read anytime — I love them even when she’s wrong, as I think she often is. You can learn a lot from dissents."
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Notably, said Conway, he went into this case skeptical of the merits of disqualifying Trump, despite reading arguments in favor of it from two of the most outspoken proponents, former Harvard Law professor Laurence Tribe and former arch-conservative Judge Michael Luttig.
However, he said, "the three dissents were what convinced me the majority was right" — because they were "gobsmacking for their weakness" and lacking "any semblance of a convincing argument."
The three dissenting judges, wrote Conway, made no attempt to dispute the evidence Trump engaged in insurrection, or to affirm the lower court's claim Trump was not an "officer" of the United States bound by the 14th Amendment. "Instead, the three dissenters mostly confined themselves to saying that state law doesn’t provide the plaintiffs with a remedy" — which would be irrelevant when the Supreme Court inevitably reviews the case. And even then, he wrote, the dissenters' criticisms of state law didn't make any sense, and their claim Trump was denied due process was clearly wrong.
"The dissents showed one thing clearly: The Colorado majority was right," concluded Conway. "I dare not predict what will happen next. But if Trump’s lawyers or any members of the United States Supreme Court want to overturn the decision, they’d better come up with something much, much stronger. And fast."
