Senate Minority Leader Mitch McConnell, R-Ky., and House Speaker Mike Johnson, R-La., were among the 179 GOP members who signed a U.S. Supreme Court brief supporting former president Donald Trump’s efforts to stay on the 2024 ballot. Politico’s Kyle Cheney first reported the brief.
This comes after Colorado’s highest court ruled that Trump should be kept off the state’s ballot, a decision on which the Supreme Court will soon weigh in. The Colorado court ruled in December that Trump was not eligible to be on the state’s Republican ballot because of his role in the Jan. 6, 2021, attack on the Capitol, citing the 14th Amendment’s prohibition on someone holding office if they have “engaged in insurrection.”
The brief, which more than 40 GOP senators and more than 130 House members signed, calls into question whether Trump was responsible for the violence on Jan. 6 and argues that barring him from the ballot infringes on congressional powers.
One of the amicus brief’s key arguments is that the Colorado court’s interpretation of what counts as “engaging” in an insurrection is too broad. “‘Engage in’ requires more than encouraging or inflammatory messages of moral support or organizing a political rally that ultimately results in political violence,” it argues.
The lower court’s decision could pose a “serious risk to the democratic process,” the brief claims, arguing that “in polarized times, it is easy to cast an opponent’s rhetoric about the outcome of elections as encouraging others to obstruct the peaceful transfer of power.”
The brief argues that under the Colorado court’s ruling, lawmakers who supported the 2020 Black Lives Matter protests would qualify as having engaged in insurrection, as would politicians who “tweeted encouragement” for demonstrators during Brett Kavanaugh’s Supreme Court confirmation hearings. It concludes with a nod to George Orwell’s dystopian novel “1984,” which cautions against totalitarianism.
McConnell could be trying to court Trump voters as election approaches
McConnell’s signature on the GOP-backed brief is notable because he has directly blamed Trump for stoking the violence on Jan. 6, calling him “practically and morally responsible for provoking the events of the day” and saying his supporters were “assaulting the Capitol in his name.” Nonetheless, McConnell voted in 2021 to acquit Trump of inciting an insurrection, arguing that the courts are responsible for holding the former president accountable.
But that defense was stripped of credibility given his “deafening” silence on Trump’s federal indictment in relation to Jan. 6, former federal prosecutor Dennis Aftergut wrote for an op-ed in The Hill last year. McConnell’s silence is “based on fear and longing,” Aftergut opined, and he is singularly focused on “regaining the power of being Senate majority leader via a GOP Senate in 2024.” For that, McConnell cannot afford to anger Trump’s base, he noted.
Justices could face scrutiny from both sides, further eroding trust in Supreme Court
The Supreme Court traditionally tries to stay out of issues where it could be accused of political bias. Weighing in on this case could open the justices up to scrutiny from both sides of the political aisle, experts told Al Jazeera. “It’s going to be very hard to avoid the appearance of bias, given the nature of the case,” a law professor said.
And the perception of a biased Supreme Court could further erode public confidence in the justices. “That’s when the court is most in danger — when it is viewed as being partisan, and it is down in the muck and the mire of everyday politics,” a professor of presidential studies told the outlet. Any loss of faith in the high court “makes the rule of law somewhat more vulnerable,” legal experts wrote for the journal Judicature.
Court risks ‘destabilizing political unrest’ by waiting on decision, experts warn
In a separate brief, three legal experts from across the political spectrum warned there’s a “disturbingly high” risk of a constitutional crisis if the Supreme Court does not rule on the Trump ballot question quickly.
“Not since the Civil War has the United States confronted such a risk of destabilizing political unrest, and perhaps never has this Court been in such a clear position to head it off,” the brief read. It made no argument for either side, writing only that “the Court has the power to resolve the question presented, and it must do so now.”
Other states are waiting to see what the Supreme Court rules on the matter of keeping Trump from the ballot. On Wednesday, a judge in Maine held off on excluding the former president, standing by for the high court’s ruling.