Following a vigorous debate on the blog about the Supreme Court’s decision to reverse Colorado‘a disqualification of Trump from the ballot, our reader Democracy reviews the article in The Atlantic by Laurence Tribe and Michael Luttig. (It is available on The Atlantic website for a free trial.)

Democracy writes:

I don’t know who titled the piece by Luttig and Tribe in The Atlantic, but I thought it was both brilliant and accurate. The title:

“Supreme Betrayal”

These are some of the most compelling passages in the article:

“What ought to have been, as a matter of the Constitution’s design and purpose, the climax of the struggle for the survival of America’s democracy and the rule of law instead turned out to be its nadir, delivered by a Court unwilling to perform its duty to interpret the Constitution as written. Desperate to assuage the growing sense that it is but a political instrument, the Court instead cemented that image into history. It did so at what could be the most perilous constitutional and political moment in our country’s history, when the nation and the Constitution needed the Court most—to adjudicate not the politics of law, but the law of the politics that is poisoning the lifeblood of America.”

Bam!

“As the extraordinary array of amicus briefs filed in Trump v. Anderson made clear, the voluminous historical scholarship exploring the origins of the disqualification clause and its intended operation left no genuine doubt that the Colorado Supreme Court got it exactly right in its decision explaining why the former president was ineligible to ‘hold any office, civil or military, under the United States,’ certainly including the presidency.

The Colorado Supreme Court entered into some extensive fact-finding in declaring Trump an insurrectionist. None of those facts has been questioned, even at the Supreme Court, where the justices just tiptoed around the factual issues and pretended they didn’t exist. Oh, but they did:

https://www.usatoday.com/picture-gallery/news/nation/2021/01/07/front-pages-capture-chaos-riots-us-capitol/6577931002/

Back to Luttig and Tribe, and the three “liberal” justices:

“For Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—who wrote a separate concurrence that in parts read more like a dissent—we can only surmise that any discomfort they felt was outweighed by the extra-constitutional allure of going along with the other justices on the decision’s bottom line and thus enabling the nation’s electorate to work its will, rather than the Constitution’s. Those three justices took the opportunity to distance themselves from at least part of what the Court’s majority did by criticizing its ‘attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.’ Sotomayor, Kagan, and Jackson convincingly dispatched as ‘inadequately supported as they are gratuitous’ the majority’s unnecessary holdings that only Congress can enforce the disqualification clause and that Congress’s implementing legislation must satisfy the majority’s made-up insistence upon ‘congruence and proportionality.’ Those three justices left in tatters much that all the other justices, with the exception of Amy Coney Barrett, wrote about the operation of the disqualification clause against federal officeholders, making plain that the majority’s ‘musings’ simply cannot be reconciled with the Fourteenth Amendment’s language, structure, and history.”

Luttig and Tribe note clearly that there were two “majorities” in this case. There was the 9-0 majority, that some commenters here cling to, and there was the 5-4 majority that went w-a-y too far in insulating Trump from disqualification even though he IS an insurrectionist. And that 9-0 majority? Luttig and Tribe state that the step “that all nine justices took represents a constitutionally unforgivable departure from the fundamental truth of our republic that ‘no man is above the law.’ ”

And that Colorado decision?

“… the week-long trial by the Colorado state court, which had indisputable jurisdiction to consider the matter, undoubtedly more than satisfied the constitutional requirements for disqualifying the former president under Section 3. At that trial, he was afforded every opportunity to defend himself against the charge that he had personally ‘engaged’ in an ‘insurrection or rebellion’ against the Constitution. Not a single justice suggested that the process was less than what the former president was due. That trial ended in a finding by ‘clear and convincing evidence’ that he had not only engaged in that insurrection but had orchestrated the entire months-long effort to obstruct the joint session’s official proceeding, preventing the peaceful transfer of power for the first time in American history. Not a single justice suggested that a more stringent standard of proof was required or that the courts below applied an insufficiently rigorous definition of insurrection. No justice suggested that the First Amendment or anything else in the Constitution shielded the former president from the reach of Section 3.”

And yet they shielded him.

Luttig and Tribe conclude with this:

“Our highest court dramatically and dangerously betrayed its obligation to enforce what once was the Constitution’s safety net for America’s democracy. The Supreme Court has now rendered that safety net a dead letter, effectively rescinding it as if it had never been enacted.”

I’m curious. Is there anyone commenting on this blog who genuinely believes that Trump is NOT an insurrectionist?