Oral surgery at today’s Supreme Court

They will dissect Section 3 of the 14th Amendment during oral argument

Friends,

The Supreme Court hears oral arguments today on whether Section 3 of the 14th Amendment of the Constitution bars Trump from appearing on the ballot in Colorado and other states because of his role in the January 6 Capitol riot.

Let’s be clear: Section 3 of the 14th Amendment says: “No person shall … hold any office … under the United States, who, having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.”

The clause has rarely been used since it became part of the Constitution after the Civil War in 1868, and it has never before been applied to a former president.

But the plain language applies to Trump.

Nonetheless, the justices will do whatever they can to avoid deciding that Trump cannot be on the ballot. This isn’t just because they’re mostly Republican appointees. It’s also because the Supreme Court as an institution doesn’t want to so obviously decide a presidential election. The court went about as far in doing that as it dared in Bush v. Gore.

So the court (or some of its members) will ask questions today that hint at their decision — and that decision will most likely be that (1) “officer of the United States” doesn’t apply to the presidency; or that (2) Trump’s actions on January 6, 2021, don’t amount to an “insurrection”; or that (3) Trump cannot be disqualified unless Congress takes some action signifying that he violated the clause; or that (4) a federal court must first find him criminally liable for seeking to overthrow the 2020 election.

I wouldn’t be surprised if the justices hinted at all of these today.

Let me add my disappointment — outrage would be a better term — that Clarence Thomas did not recuse himself from this case, given the abundant conflicts of interest he has in the issue.