They should take it.
“The experience of being disastrously wrong is salutary,” John Kenneth Galbraith wrote. “No economist should be denied it, and not many are.”
I’m not an economist. But I was wrong about the litigation to bar Donald Trump from the ballot as an insurrectionist. I wrote in August that the project was a “fantasy.” Now, by a 4–3 vote, the Colorado Supreme Court has converted fantasy into at least temporary reality.
The Fourteenth Amendment provides that anyone who swore an oath to support the Constitution of the United States, and who then “engaged in insurrection or rebellion against the same,” is forbidden to hold any federal or state office unless pardoned by a vote of two-thirds of both houses of Congress.
I doubted that any contemporary court would apply this Civil War legacy to the politics of the 2020s. Colorado’s supreme court just did. Trump swore an oath to the United States when he entered the presidency in 2017. According to Colorado’s court, his actions leading up to the violent coup attempt of January 6, 2021, amounted to “engaging in” an insurrection. Therefore, the court ruled earlier today, Trump is disqualified from appearing on the Republican primary ballot in Colorado.
The Colorado decision is not the final word. The Colorado Supreme Court is the ultimate word only on Colorado law. In this case, however, the Colorado court is interpreting a federal constitutional amendment. Its decision can and will be appealed to the U.S. Supreme Court.
But the possibility of one more judicial appeal does not diminish the drama of what just happened—or the political potential.
The big winner from tonight’s decision is not President Joe Biden. The Colorado Supreme Court decision is not about the general election in November 2024. It’s about Colorado’s Republican primary. If the decision stands, the principal beneficiaries will be Trump’s Republican rivals, one of whom—Florida Governor Ron DeSantis, former New Jersey Governor Chris Christie, former South Carolina Governor Nikki Haley, or the entrepreneur Vivek Ramaswamy—will win Colorado’s delegates to the national Republican convention. If the decision is extended to other states, one of that roster will win those delegates too.
The U.S. Supreme Court now has the opportunity to offer Republicans an exit from their Trump predicament, in time to let some non-insurrectionist candidate win the Republican nomination and contest the presidency.
The Colorado court has invited the U.S. political system away from authoritarian disaster back to normal politics—back to a race where the Biden-Harris ticket faces more or less normal opponents, rather than an ex-president who openly yearns to be a dictator.
I personally didn’t expect such a possibility to open, and I worried about the risks that accompany this possibility. Will pro-Trump voters accept the legitimacy of court actions against their candidate? But the timing of this case mitigates the risk.
The Colorado Supreme Court harshly condemned Trump personally. It ruled him an insurrectionist, in effect a traitor. It joined his name to the roster of the Confederate rebels whom the authors of the Fourteenth Amendment wanted to ban from politics. And at the same time, that court offered emancipation from Trump to Trump’s party.
The polls seem to indicate that Americans’ preferences for 2024 stack up as follows: Trump will probably lose to Biden, but almost any other Republican would likely beat the current president. Until now, Trump supporters have been protecting Biden from his own weaknesses, by insisting on nominating an even weaker alternative. Republicans who want to win in 2024 were just delivered a big favor, if they will accept it: a state supreme court ruling that their weakest general-election candidate is disqualified from running in the primaries where his too-loyal base is not emoting, not thinking.
If upheld by the Supreme Court, the Colorado court’s decision might yet save the GOP from itself. Will the GOP consent to be rescued?
[Read: Trump’s threat to democracy is now systemic]
Since Trump made his comments about wanting to be a dictator for a day, some Republicans have argued that there’s nothing to fear, because the institutions will stop him: The military won’t obey the illegal orders Trump has said he’ll issue; the Department of Justice won’t prosecute the authoritarian cases Trump says he wants to bring. For those Republicans: Here’s your chance. The Colorado court has just granted you what should be your fondest wish, a clear path to the Republican nomination for a post-Trump candidate. Chris Christie, Nikki Haley, and even the boorish Ron DeSantis would all be more constitutional presidents than Donald Trump—and Haley especially would likely prove herself a more compelling candidate.
Until now, Trump’s Republican rivals have shown themselves too scared to fight and too weak to win. The question ahead: Are they too scared and too weak even when the win is presented to them by the courts? The immediate reaction of many of them was, as usual, to cower and truckle—to take Trump’s side against their own. This is their last exit; if they drive past, there will not be another before the primaries finish.
The present Supreme Court is highly attuned to the wishes of conservative America. If the conservative majority senses permission from Republicans to save Republicans from themselves, they might do it. If they sense a veto from Republicans, they may not. What is said and done in the next days and hours may matter a great deal. If Republicans want rescue, they must stop pretending they object.
