Defeating Trump in court will be dangerously destabilising to American democracy

If I was back in my old Washington newsroom, I would obviously be pitching to the bureau chief that I should be deployed immediately to Aspen or Vail – or maybe Beaver Creek – to test the mood of locals on the fabulous ski slopes of the Rocky Mountains. After all, the Colorado ruling to strike Donald Trump’s name off the ballot is momentous. But I suspect my former boss would have seen straight through my ruse and said: “Forget it, pal. The story is here in Washington.”

And it is.

What the ruling this week has done is put the Supreme Court of the United States on the ballot in 2024 – and slap, bang in the middle of the most high-stakes political controversy imaginable. This will make its 2000 adjudication on Bush v Gore in Florida look like the settlement of a minor playground squabble. It is exactly what the justices were hoping to avoid.

The doctrine of the court is – wherever possible – to stay out of electoral politics. In simple terms, it is the job of voters, not the courts, to decide who is and who is not a fit person to be president. But the Colorado ruling has blown a massive crater through that. Because you can be sure that, if the Colorado judgment is allowed to stand, then other Democrat-controlled states will be licking their lips and thinking this is the surefire way to defeat Trump.

A friend who is an active Democrat was excitedly telling me about all the other states that could follow suit. Really? Trump is already using this as another fundraising opportunity. Every time it looks like the “deep state” is moving against him, his sense of victimhood increases, support for him solidifies, and – given January 6 – the incredible charge is made that it is Joe Biden and his Department of Justice who are threatening the US constitution and undermining democracy. His supporters whoop and holler in affirmation.

For some time now, a scholarly argument has been going on about whether Section 3 of the 14th amendment could be used to prevent Trump from running. The amendment was one of the so-called “reconstruction amendments” passed after the civil war in the 1860s, and this clause was designed to stop the leaders of the Confederacy in the Southern states from simply returning to the government jobs they had held prior to their violent attempts at secession from the rest of the United States. Don’t allow insurrectionists back into government.

Section 3 is – on the face of it – very clear. If you’ve taken an oath to support the constitution, you can’t “hold any office” in the United States if you’ve “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”. Which is precisely what Donald Trump did on 6 January 2021. He told the mob to come to Washington because it was going to be “wild”. On the day when he addressed the crowd that had gathered at the Ellipse, just beyond the South Lawn of the White House, he told them to “fight like hell” to save the country. He then praised the attackers later that day, and afterwards.

Needless to say, we are sailing into uncharted waters. Trump is like a latter-day Vasco da Gama and Captain Cook in his ability to take us into unnavigated political landscapes. This provision has never been used to disqualify a presidential candidate. In fact, it’s only been used a couple of times since the civil war. One question: are the nine men and women on the Supreme Court really going to disenfranchise tens of millions of Americans from voting for their chosen candidate?

The court has a 6-3 conservative majority, and three of the justices were appointed by Donald Trump himself. But forget the balance of the court between conservatives and liberals. If I were to stick my neck out, my guess would be that the court will rule 9-0 to strike down the Colorado judgment. It will decide it is at best ambiguous whether the wording of the amendment can apply to the president, and will argue that it is not yet proven in court that Donald Trump was an insurrectionist. As his lawyers will no doubt argue, he was just someone using his first-amendment rights to free speech, and was merely expressing sincerely held views that the election had been stolen. That is likely to be the wiggle room the justices will use to swerve this searingly hot potato.

But don’t think that will be the end of it. Throughout 2024, the US constitution is going to be stress-tested like never before. There are court cases galore, and legal challenges too. Whether they like it or not, every word uttered by justices will be scrutinised for any sign of bias. And anything that falls short of full-throated support for Trump will be seized on by him to further undermine confidence in the justice system.

All this while the language of the former president becomes more, well, fascistic; no other word does it justice. His willingness to entertain the idea of being a dictator on day one of a second term, his attacks on judges who are due to try him – and, most disturbingly, his language about immigrants: calling them “vermin” and saying they’re “poisoning the blood of our country”. In 2016, Mexicans were merely “thieves” and “rapists”. It is disturbing stuff, and so it is not surprising that many in the US want to see him stopped by any means possible.

But for Trump to be defeated by a Supreme Court ruling would be dangerous, and totally destabilising for American democracy.