The reasonable conclusion from the recent oral argument in Colorado v. Anderson is that nine people — in the name of 330 million fellow citizens — will subordinate the law to the mob. They won’t say that, of course, because they’ve convinced themselves that it’s solely for voters to choose, or not, an insurrectionist. Not for them, the jurists, to say, let alone affirm, what the law is (even though they endlessly preach that that’s their job).
State election laws? Fact-finding and legal analyses by Colorado courts of Colorado law? The explicit language of Amendment XIV, Section 3? Legal analyses by credible amici? Not worth Supreme bother. The Court was far more obsessed with (entertained by?) contriving panic over conflicting state laws. Better to reward insurrection than uphold the law — and still call it democracy.
This lays bare how even the country’s highest judicial authority has followed the mob by severing law from democracy. A surprise, no doubt, to the millions who’ve traditionally — and correctly — understood that one without the other gives us neither. Voter desires, a jumble of inchoate and incoherent sensations, impulses, and desires, has become the sole factor to legitimize elections, even at the expense of the law.
Woeful as this development is, it shouldn’t surprise us. It’s not the first time the Court’s six-member majority, in particular, has shown itself to be more politician than jurist, concerned itself with outcomes at the expense of legal analysis and consistency in the law. When at least five people find it convenient, states get to decide; when not, they don’t. Who said “kangaroo court” was a thing of the past?
The lack of seriousness started with the Chief Justice. The misdirection-by-bluster from Roberts was priceless, pure condescension … and projection. If Trump were kept off the ballot, he predicted, Republicans would manufacture claims of insurrection in response. This is no doubt true, but then Roberts proclaims himself clueless as to “what the standard is for when [something] arises to [the level of insurrection].”
He chose to ignore the many procedural tools courts have to deal with frivolous claims. Just as he ignored the thoroughness of fact-finding in Colorado (and several other state) courts who had no difficulty looking up a definition of “insurrection” and applying the evidence to it, and concluding that, yes, it walked and quacked like an insurrectionist duck. Yet the country’s top jurist seemed stymied. More likely, Roberts couldn’t be bothered.
The cavalcade of nonsense didn’t stop with Roberts. Even Kagan, hardly a reactionary, got in on the act in a way that suggests mischaracterization of an issue, standard fare for the Six, has infected even her rigorous mind by proximity. “Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?”
She’s hardly dim, so the distortion must have been intended. Colorado’s Supreme Court decided the issue for Coloradans, and for them only. Its decision in no way prevents — or even affects — what other states might do with Amendment IV, Section 3. Several other states’ courts have considered the issue and decided not to disqualify Trump. We’ve never before been concerned with 51 separate sets of state election laws. Why now?
We can only guess at the motive behind the Court’s knee-jerk and casual dismissal of even the idea of disqualifying Trump. There’s a whiff of panic at the thought of being chased from their chambers with pitchforks by a Trump mob enraged by what they allege to be “election interference”. Counter-intuitively, in surrendering to the threats of a psychotic minority, cowards in black dresses will end up doing more structural damage than the mob ever could.
