Supreme Court could pave way for authoritarian presidency

In 2016 Trump said “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK?” On Jan. 6, 2021, he tried to overthrow the government and now the Supreme Court appears willing to let him try again.  

In the recent Trump v. Anderson case, the supermajority of the Supreme Court appears to have given Trump the green light to be re-elected president, this time with an authoritarian bent. The court will issue its expedited ruling in the coming days.

On Feb. 8, the Supreme Court heard the case to decide whether Colorado can remove Trump from the ballot for participating in an attempted insurrection to overthrow the government. In the exceptional two hours of testimony, every associate justice appeared ready to allow him to run again. All appeared doubtful that Colorado or any state has the authority to remove Trump from the ballot despite the fact that the states run federal elections. 

We need to take seriously what Trump said to Fox News' Sean Hannity in December after the TV host asked whether, if re-elected, Trump would abuse his power: “We love this guy,” he said of Hannity. “He says, ‘You’re not going to be a dictator, are you?’ I said: ‘No, no, no, other than day one. We’re closing the border, and we’re drilling, drilling, drilling. After that, I’m not a dictator.’ ”

In August 2022, I warned on these pages that the U.S. is sliding into authoritarian rule. If the Supreme Court rules to allow Trump to run again, as it appears very likely to do, we will have arrived.  

Reading the transcript of the Supreme Court case is a surreal experience. The justices bent over backwards to read one of the most clearly written sections of the Constitution as if it were a riddle with no answer. Judge the wording of Section 3 of the 14th amendment, “Disqualification from Holding Office,” for yourself: 

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”  

Written in 1866, at a time when many former Confederate traitors were trying to get back into power, Section 3 was written to prohibit any person who engaged in “insurrection or rebellion” against the government to hold office 

The section also reads that those “who, having previously taken an oath … to support the Constitution of the United States” but attempted to overthrow the government shall similarly be prohibited. Although some specific offices are listed, not all are. It is evident that although they are not listed, the president and vice president are both holders of “any office” and have “taken an oath … to support the Constitution of the United States.” 

Despite the obvious application of Section 3 to “any office,” Justice Ketanji Brown Jackson read the absence of the words “president” and “vice president” to mean they are exempted. At one point, she actually chided Trump’s lawyer, Jonathan Mitchell, for forgetting to make this point. The newest liberal member of the court is cheering on Mitchell, who claims that Trump did not engage in an insurrection and, even if he did, he is immune from prosecution. Trump is making the same claim in a federal criminal case.

Although Section 3 was used to prevent former Confederates from running for local and state office, several justices appear to agree that it was never intended to apply to the president and vice president. But lacking any evidence to support this claim, Mitchell admits to making it up. 

Several justices also agree with Trump’s lawyer that “No person shall…hold any office” means that the insurrectionist is allowed to run for office but cannot take it if they win. And even then, they assert this must be done by Congress and not the states. However, there is no language in Section 3 to support this claim. Section 3 only allows Congress to remove the ban but does not require it to act to ban the insurrectionist.  

The justices repeatedly contort themselves to effectively make Section 3 unenforceable by anybody. Much of the hearing focused on who can actually ban the insurrectionist from office. Nearly all the justices appear to doubt it can  be the states. With Congress hopelessly deadlocked on virtually every issue, this means that no one will step in to prevent a proven insurrectionist from being re-elected as a future dictator.     

Through such contortions of logic, these justices believe that our already weak representative democracy will survive another far-right insurrection. Another is sure to erupt if Trump genuinely wins re-election but is prevented from taking office by Congress.  

The Supreme Court performed a funeral procession for what little remains of our claim to be a representative democracy on that day. It appears incredibly likely that the court will rule against Colorado, Maine and any other state keeping Trump off the ballot. If it does, the court will be giving Trump the green light to shoot our representative democracy dead with a gun on Fifth Avenue while preventing us from taking the gun away from him until after it is dead. 

And dead it surely will be if the Supreme Court continues down this path of suicidal delusion that Trump or any one like him has any right to run for office let alone hold it.   

If the Supreme Court signals the death knell for the system the last remaining weapon in our arsenal against fascism will be the organized workers movement engaging in a disruptive general strike. 

Robert Ovetz is editor of "Workers' Inquiry and Global Class Struggle," co-editor of the forthcoming "Real World Labor (Vol. 4)" and the author of "When Workers Shot Back" and "We the Elites: Why the US Constitution Serves the Few." Follow him at @OvetzRobert