Based on today’s oral arguments, it will probably be a decision for Trump

As I expected and predicted, the Supreme Court will probably decide the Trump/Colorado case in favor of Trump.

I doubt the decision will be unanimous. On the liberal side, Justice Sotomayor was outspoken in her questions to Trump’s lawyer (Jonathan Mitchell who was arguing his sixth Supreme Court case). Justice Kagan’s questions, too, suggest to me that she will come down against Trump.

Justice Brown Jackson was hard to read, with questions that seemed sympathetic to Mitchell’s point that the 14^th Amendment bar fails to mention the presidency and also sympathetic to Trump’s due process argument – the argument that he was effectively convicted of the high crime of insurrection without ever being charged with it.  

Interestingly, Mitchell himself downplayed the common-sense due process argument. When asked why, he explained that he was reluctant to rely on that argument because the outcome might then be simply a remand of the case back to Colorado to repair the due process defect, and then the case would drag on and into the election.

On the conservative side, Justices Kavanagh, Alito, Gorsuch, Thomas and Barrett, and Chief Justice Roberts, seemed to be leaning toward Trump. They were aggressive in their questioning of Colorado’s lawyer, Jason Murray, a 38-year-old lawyer with a small but well-regarded Denver firm who was arguing his first Supreme Court case (but nonetheless did a respectable job in my opinion).

Justice Thomas effectively skewered Murray with the point that a state has never disallowed a national candidate under the 14^th Amendment, even in the aftermath of the Civil War when the 14^th Amendment was enacted. If Murray’s argument is right, isn’t it strange that it has never happened before?

Murray also struggled to address the issue of what would happen if different states came to different conclusions as to whether Trump committed an “insurrection” within the meaning of the 14^th Amendment. This again goes to the due process principle. Ordinary legal due process normally precludes inconsistent decisions.

A word about the news reports: The liberal media portrays the Court as hopelessly politicized hacks because that portrayal generates clicks and, now that the court is mostly conservative, undermines their rulings.

Before buying into that meme, consider listening to the oral argument in this case (which is available at many sources with a few clicks). This is a complicated case, the Justices were very well-prepared, and the Court is considering the matter carefully.

The Supreme Court is the last-standing great institution of American government. They will come to a fair decision in a fair way, whether or not it is the decision I want.

Glenn Beaton practiced law in the federal courts, including the Supreme Court.