The United States Supreme Court agreed this Friday to review Colorado's unprecedented decision to ban Donald Trump from participating in next November's elections in that state because it believed he encouraged insurrection after the results of the 2020 polls.
The highest American judicial authority has scheduled oral arguments for February 8. This decision places the nine justices of the high court in the middle of the 2024 electoral process, right in the middle of the primaries.
This represents the most significant involvement of the Supreme Court in the electoral process since the 2020 elections, after it decided the elections in favor of George W. Bush, to the detriment of Al Gore, by five votes to four, in a partisan division between judges conservatives and progressives. There the polarization of the nation emerged and caused damage to the reputation of the institution.
His decision in this new case could have a domino effect if he ratifies the decision of the Colorado high court to consider that Trump cannot be eligible because his actions led to the attack on the Capitol on January 6, 2021, in an attempt to annul the verdict of the polls in favor of Joe Biden and perpetuate himself in power.
Ratifying this measure, which today seems very remote, would cause a national earthquake, since it would establish the coordinates that would allow any other state to establish a similar ban. Maine has already made an identical decision and states such as Illinois, Oregon and Massachusetts are waiting, while Minnesota and Michigan denied this possibility.
A Colorado judge also aligned himself with the position of denying the petition made by six citizens to veto the participation of the former president. The magistrate determined that Trump was involved in the insurrection as one of the main instigators. However, he considered that presidents are not subject to the insurrection clause established by the 14th Amendment to the Constitution because they are not officials of the United States.
But that state's high court, in amending that decision, became the first to find that a presidential candidate can be removed from the polls by that constitutional provision established after the Civil War. This amendment was introduced to prevent insurrectionists who violated their oath to defend the Constitution from taking possession of the presidency and thus prevent the Confederates from returning to power. Congress can lift the ban, but this requires two-thirds support in both chambers.
In both Colorado and Maine the decision is frozen, awaiting subsequent resolutions due to the appeals presented by Trump. In this way, the former president can still have his name in the primaries until the legal conflict is resolved. These two states hold their primaries on March 5, Super Tuesday, but the ballots are already printed and will be sent to military members and other registered voters abroad. In the event that the Republican candidate was left out, the votes with his name would be annulled.
Another controversy arose from this decision. Democratic legislators demanded that the ultra-conservative judge Clarence Thomas recuse himself and not participate in the resolution of this case. Gini, Thomas's wife, was involved in organizing the events that led to the storming of the Capitol. Not only that, but she has been one of the spreaders of the big lie that Trump won the 2020 elections.
But the US Supreme Court lacks ethical guidance and Thomas can simply say that he will be impartial, so everything indicates that he will not agree to deviate from this matter. Thomas is the only current member of the court who participated in the decision that gave Bush the presidency of the United States. He reached this stage through the nomination of Bush Sr. in 1991.
This only confirms the citizen's view that the Supreme Court deals with issues through the prism of the party that has placed them in that institution. Today there are six conservatives and three liberals. Democrats express little confidence in this court, the complete opposite of what Republicans indicate. The Trump issue has all the potential to further polarize this institution.
Constitutional experts are also divided on whether it would be good for democracy to ban Trump from participating in the elections or whether this move, as legal as it sounds, would not be politically dangerous. Republican lawmakers immediately spoke of election interference.
Many of these experts hope that justice will try to resolve this matter without addressing the underlying question of whether Trump was in the insurrection, when there is still no ruling. Judges have several ways to keep the former president on the ballot without getting into the nitty-gritty. Trump's lawyers raised several arguments to overturn Colorado's decision, such as giving voters the opportunity to choose their candidate.
From the other side it is replied that the language of the Constitution to prohibit insurrectionists is more than clear, it affects presidents and does not require a law of Congress to apply that measure.
