Do the Colorado state supreme court justices or Maine’s secretary of state really care if the Supreme Court overturns their decision?
A bit before the holidays, I appeared on Hugh Hewitt’s radio program, and the host predicted the U.S. Supreme Court would strike down the Colorado supreme court’s decision barring Trump from the ballot in that state, 9–0. Appearing on Fox News, Hugh predicted that the state supreme court majority “will be scorned for decades because of this”:
“It is a shameful moment in American jurisprudence. It is like watching a bad high school musical. It is a cringe-inducing moment for anyone who has ever taught the law, practiced the law, and Colorado will be scorned for decades because of this, and it will be reversed by the court very, very quickly.”
Asked whether all nine U.S. Supreme Court justices would likely reverse the Colorado Supreme Court’s ruling, Hewitt said, “I pray 9-0 because if Justice Brown Jackson or Justice Sotomayor throws in with the pirates in Colorado, their reputations will be as damaged as the Colorado justices’ reputations are. It is an absurd decision.”
It seems safe to assume that a court that doesn’t find the Colorado supreme court decision to be constitutional and valid will not be any more sympathetic to the arguments of Maine secretary of state Shenna Bellows.
Let’s assume that the U.S. Supreme Court does indeed strike down the decisions removing Trump from the ballot in Colorado or Maine. Let’s envision that the court unanimously rebukes the decisions of the Colorado justices and Maine’s secretary of state. What will the consequences be for Colorado justices Monica M. Márquez, William W. Hood III, Richard L. Gabriel, and Melissa Hart and for Maine’s Bellows? My guess is those consequences will be minor and easily forgotten. Sure, Trump will be on the ballot. And in theory, it is embarrassing to have the U.S. Supreme Court unanimously, or near-unanimously, declare that your legal reasoning is not consistent with the Constitution, legal precedent, or logic.
But a sufficiently partisan heart can wear those rebukes as a badge of honor, griping — I nearly wrote, “bellowing” — about a “right-wing court” with three Trump-appointed justices and dark money and sinister influences and the Babadook and all kinds of other sinister Republican forces reversing a righteous decision. (This is why Hugh is correct: If Justice Brown Jackson or Justice Sotomayor deviate from the majority, a whole bunch of progressives will conclude that Bellows and the Colorado justices were right.)
In Democratic circles, Bellows will now always be known as the woman who threw Trump off the ballot for leading an insurrection. She ran for the U.S. Senate against Republican Susan Collins in 2014 — with no major opponent in the Democratic primary, 26 percent of Democrats left their ballots blank — and who knows, maybe Bellows wants to run for some other office as a Democrat again.
In Colorado, supreme court justices are initially appointed by governors but then have to face the voters by running in statewide retention elections. (All of the justices on the court were appointed by Democratic governors Bill Ritter, John Hickenlooper, or Jared Polis.) Colorado voters previously chose to keep all four justices who ruled to remove Trump from the ballot.
For a lot of Democrats with authority over state election laws, the incentive to get Trump off the ballot by any means necessary is enormous, and the incentive to follow the law and stay within established powers of the office is small.