Chicken Supremes

Cop with James Earle Fraser's statue of The Contemplation of Justice, waiting for the outcome of Trump vs. Anderson. AP Photo/Jose Luis Magana, via WJTV, Jackson, MS. 

I told you the main purpose of the Supreme Court in the Colorado case would be to avoid getting within 500 feet of an opinion on whether the adjudicated rapist and bank fraud Donald Trump ever violated his presidential oath by engaging in insurrection after he took the oath in 2017, and sure enough, they avoided it, though the three liberals, in their dissent-concurrence, did manage to use the phrase "oathbreaking insurrectionist" four times, which is all to the good.

The majority even avoided making the case about the questions of standing and venue—whether the plaintiffs (Colorado Republicans) had standing to sue to keep Trump off the ballot and whether the Colorado judiciary was the place to do it. Instead they argued, effectively, that there was nobody with standing and noplace for them to go anyway, and blaming that on Congress, I mean the Congress of the late 19th century, which had never passed any legislation telling people how it's supposed to get done, so it's useless: it's illegal for an oathbreaking insurrectionist to hold federal office, but impossible to stop him from doing it, because the technique is a lost secret of the ancients.

Court and Snark

 

Photo by Julia Nikhinson/Getty Images, via CNBC.

It's looking pretty clear from this morning's oral arguments in the Supreme Court, and falling out pretty much as I expected: Trump's appeal against his disqualification in the Colorado primary election will succeed, and I'm predicting that the appeal he's supposed to submit Monday against the DC ruling on his presidential immunity will be denied, without arguments, by May 12, for trial to begin no later than June 1 (per the flow chart created by Just Security). 

In fact the fix appears to be a little bit in, not exactly in a bad way, not on Trump's behalf but on those of the nine Justices, united as we've never seen them in their desire to avoid deciding whether Trump had "engaged in" an insurrection or not. Roberts practically wailed: "Counselor, you're saying that somebody, presumably us, would have to develop rules for what constitutes an insurrection?"

Oh noes, not more work!

One of the most remarked features of the arguments was how little interest anybody, attorneys on both sides or Justices, showed in talking about that. They were openly avoiding talking about it in favor of just about anything else, mostly the technicalities the Constitution doesn't mention at all, of how Amendment 14 Section 3 is supposed to be administered.

I think a lot of people are missing how this is a problem for the three "liberal" Justices as well. To keep it short, they have a likely choice between  a 6-3 decision suggesting Amendment 14 Section 3 really doesn't mean anything at all and a 9-0 decision leaving the question open—where I think they're going, which is to lay the burden on the Amendment's neglected Section 5,

All My Trials

 

From Trump's petitioner brief to the Supreme Court re Trump's Colorado disqualification; I think it's pretty much the same as what the Minnesota Supreme Court decided in their version of the case, and it's what I've been saying since August—Section 3 doesn't say insurrectionists should be kicked off the ballot, it says they can't hold the office.

That's what the text plainly says, and it's how the provision has historically been applied, most notably the only time it was applied between Reconstruction and Trump, in the Red Scare expulsion of Victor L. Berger (Socialist-WI), who was convicted of espionage in 1919 over his opposition to World War I, subject of numerous editorials in his newspaper, the Milwaukee Leader, and given a 20-year sentence: