The Colorado Case

Having now read the opinion and dissents and a couple of the amicus briefs in the case, three observations:

(1) From a formal legal perspective, this is a difficult case. How to properly apply Section Three of the 14th amendment in these circumstances is far from self-evident, in either substantive or (especially) procedural terms. There’s of course an extreme temptation to confuse the political fact that re-electing Donald Trump would be an incalculable disaster with the legal question of whether he’s constitutionally barred from running for the office. But, despite my wholehearted agreement with the critical legal studies axiom that law is politics, legal and political questions are not identical, although the separation between them is far less extreme than judges like to pretend.

(2) Speaking of which, behind the technical legal formalities of this case lies the prudential question which ought to be the basis of the decision, which is this: Will holding that Trump is ineligible to be on the Colorado ballot help or hurt his re-election prospects? This of course is the very question that every justice of the court will claim plays no role in their decision. But it’s the only question that actually matters. Unfortunately, the answer to that question also is far from self-evident, and there are strong arguments in both directions.

(3) Ultimately, an argument over just exactly how much of an insurrectionist you have to be to be disqualified from being president of the United States is truly surreal. But here we are.