It is widely expected the Supreme Court will review the Colorado judiciary's decision to disqualify former President Donald Trump from the ballot under the 14th Amendment, and furthermore that they will likely reverse that decision.
But it's not that simple, wrote former political strategist Sidney Blumenthal for The Guardian — because the court could only arrive at this conclusion by "shredding originalism and textualism." And that puts the Republican-appointed justices in a bind.
"Originalism claims to divine the original intent of the country’s founders and interprets the constitution along those lines. Using cherry-picked, false and bad-faith history, originalism has been the pure pretext for overturning Roe, dismantling commonsense gun regulations, ending environmental regulation, gutting consumer protection and voiding voting and civil rights," wrote Blumenthal, Likewise, "Textualism is the sister doctrine of originalism, providing snatches of text from the constitution divorced from social and legislative context as if in scriptural fundamentalism to undergird the reversal of rights ... It works hand in hand with originalism to exclude inconvenient portions of the historical record from judicial consideration."
However, Blumenthal continued, "now this politicized jurisprudence has turned on its inventors. If ever there is a legal ruling of ironclad constitutional reasoning that can be defended on originalist and textual grounds it is in Anderson v Griswold, the decision issued last week by the Colorado supreme court. The decision holds that Trump engaged in insurrection on 6 January 2021, and that he is therefore barred for running for president under section three of the 14th amendment."
The problem for any "originalist" judge wishing to allow Trump on the ballot is that there is ample historical precedent revealing the intent of the 14th Amendment's Insurrection Clause was intended exactly for this situation, with University of Maryland law professor Mark Graber saying that the historical record shows “Republicans insisted section three sets out a new qualification for office, not a punishment for a criminal offense.”
And that leaves this Supreme Court with limited options to defend the former president — especially given the fact that some longstanding conservative legal scholars have driven forward the movement to disqualify Trump in the first place, like former appeals court judge Michael Luttig, widely considered to be one of the progenitors of modern conservative jurisprudence.
"If the court grants Trump a reign of impunity as well as total immunity for his past actions, it will also be opening the gate for his stated intention to abrogate the constitution to establish a dictatorship in the future," concluded Blumenthal. "Section three, established as the 'self-defense' of the republic for the future, will be rendered meaningless."
