When the Supreme Court Rules on Colorado’s Ballot, Pay Attention to What It Doesn’t Say

Earlier this week, the Supreme Court opted to hear the Jan. 6 immunity challenge from the District of Columbia this spring, a matter they could and should have summarily affirmed weeks earlier. The effect will be to roll the Jan. 6, 2021, insurrection trial, which ought to have started this week, into early fall. Last month, the Supreme Court heard oral arguments in a separate case, seeking to remove the former president from the Colorado ballot as a result of his conduct on Jan. 6, 2021. We are currently awaiting a decision in that case—one that could come as soon as tomorrow—but it will affect the ballots in Maine and Illinois as well as other states.

In neither election-related case, however, is the Supreme Court likely to rule on the central issue: the question of Donald Trump’s culpability for his participation in an insurrection against the United States. In the immunity case, the issue before the court is a broader question about presidential untouchability and separation of powers. And oral argument in the ballot access case strongly suggests that the court’s ruling will ultimately focus on one or more legal technicalities about who decides ballot access questions and how. (Oddly enough, the only real discussion of the underlying issue of the insurrection at arguments was initiated by Trump’s own lawyer, Jonathan Mitchell, who described the events as “ a riot … shameful, criminal, violent.”) But the fact that the court may be silent on the insurrection itself does not mean it won’t send a signal about Trump’s conduct in connection with the events of that day. The real question is whether our media will be savvy enough to hear it.

Courts and other legal actors have a way of saying one thing with their legal conclusion and another with the way they reach it. James Comey, for example, absolved Hillary Clinton of legal violations with respect to her email server, while sending a very different signal about his views of her conduct more broadly. More recently, special counsel Robert Hur absolved President Joe Biden of legal liability in the classified documents matter he was tasked with investigating but used his report to let it be known his personal and even medical-via-a-lawyer-not-a-doctor views of the mental acuity of the president.

The Supreme Court itself has a famous history of ruling for one party on the legal bottom line even in cases that deliver a broader loss to the legal winner. Take one of the most famous Supreme Court cases of all time, Marbury v. Madison, in which the court technically ruled for the incoming Jefferson administration in thwarting the outgoing Adams administration’s attempt to pack the courts, while in fact dealing the Jeffersonians a more consequential loss by seizing to the court itself the power to overrule laws.

When the Supreme Court issues its opinion in the ballot access case, therefore, smart court watchers will be looking for not only the legal bottom line on whether Trump can stay on the ballot, but also what signal the court sends the public about Trump’s underlying conduct. Because pending before it is a case in which the Colorado courts expressly found that Trump did engage in an insurrection. In fact, every entity that has ruled on the merits of that question—from the Colorado courts, to the Maine secretary of state, to now the Illinois judiciary, to the findings of the Jan. 6 committee and the House impeachment inquiry—have so agreed. Will the court reject all those conclusions? Will the court take this opportunity to absolve Trump of insurrection? If the court declines to do that, it will speak more loudly than whatever it formally holds on the technical legal arcana it seems likely to focus on in its opinion.

That doesn’t mean everyone will hear it. If history is any guide, one likely reaction from the press will be a host of “Trump exculpated!” stories, in much the same way the Mueller report was treated as a blanket exoneration. It’s a forgivable error. Technical legal arcana is technical and arcane, and “Trump exculpated!” is journalistic dopamine. But that doesn’t mean that reporters should knock over the proverbial phone booths in rushing, en masse, to announce that Trump has “won” or “lost” the case once the opinion is released. Journalism focused on the horse race and not the stakes will be unlikely to capture the fact that the court may not dispute Trump’s participation in an insurrection when presented with the chance to do so, although that latter is the headline as well as a fact more relevant to the things voters will need to weigh come November. To our minds, “Court Rules Trump Can Remain on Ballot, Declines to Absolve Him of Insurrection” feels like a more accurate framing of the actual stakes of the Colorado case, assuming that the case goes how we anticipate.

One might wonder why it is that when it’s Donald Trump openly committing crimes and evading responsibility, the default media narrative is that he didn’t commit crimes, yet when Democrats are found to have committed no crimes, the story becomes that they are still sufficiently crime-adjacent to be maximally crimey. The coverage of the Comey and Hur reports focused orders of magnitude more on their non-conclusion details than the decision not to press charges. Whereas our press largely fell for Attorney General Bill Barr and Trump’s efforts to spin the Mueller report into an “exoneration” at the expense of the damning facts about obstruction of justice that were laid out in its pages.

Maybe it’s just that everyone, reporters included, already knows that Trump commits crimes. We all saw Trump’s followers carry his banner into the Capitol, overrunning police barricades, smashing windows, and bludgeoning law enforcement, in acts many of them have said, in court, during their own prosecutions, they did at Trump’s direction. And perhaps reporters are less sure about all that legal jargon and technical conclusions than they are of the non-legal assertions made by Comey and Hur. “But Her Emails” or “Biden So Old!” thus become more newsy than legal conclusions—because shiny objects are gonna shiny. But that’s not an evenhanded approach, and it’s certainly not the approach a self-governing citizenry needs from its Fourth Estate, with democracy itself on the line.

Maybe this is all unfair. Maybe we can expect better. Maybe if the Supreme Court issues an opinion ruling for Trump on technicalities while still remaining silent on the lower court’s finding that he engaged in insurrection, we’ll see headlines and reporting capturing the dual nature of such a ruling and the momentous implications of a court that seems to accept that he did what we know he did. But we’re not holding our breath.

We all know Jan. 6 happened because we witnessed it, we impeached him for it, a select committee exhaustively reported on it, in sessions that were televised. Hundreds of participants have been sentenced for participating in it. The only material question for the high court is whether he will be allowed to get away with it. What the media should be reporting when these cases come down would not so much be about picking the “winner” or “loser” in a highly technical appeal around ballot access. Instead, it would be repurposing the old punchline: We know exactly what Donald Trump is. Now we’re just haggling about the price.