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Tying this to another post of mine a while back about Ken Paxton and the open war going on in Republican Party between conservatives and far-right "ends justifies means" activists:
This happened this week:
This is probably the reason that I think that the Court will try to keep the tradition of States controlling their own ballots while limiting the scope of their decision to apply to only the case they were given.
On one hand, Originalist's argument is that "the meaning is what the text says". There's a group of Republicans out there saying, "Oh this was only about the guys from the Civil War". The problem with that argument is that the insurrection section is part of a larger Amendment. An Originalist cannot say, "This part of that Amendment applies to all citizens in all times but this one section doesn't". The meaning of the text is what the text says. If the writers of the Amendment intended for the insurrectionist clause to apply to the Civil War, they would have said so. Similarly, if the writers of the Amendment wanted only those convicted of insurrection to be excluded, they would have said so.
Originalists and conservatives want to constrain government and make it play by the rules. What DeSantis said in that clip is the antithesis of government constraint. It's an example of an executive in the government abusing power and using the levers of government to punish his opponent. And he's justifying his abuse of power with a nonsensical argument that has no basis in law. This exactly what the conservatives on the Court don't want.
These challenges are not coming from Democrats or liberals. The challenges are coming from conservatives and Republicans. Trump is out there with his usual "Look over here and pretend you don't see what you really see" bullshit, claiming that Biden and the Democrats are trying to keep him off the ballot. The 14th Amendment and States' Rights arguments to keep Trump off the ballot are coming from his own party and the Democrats are on the sidelines saying, "You go!".
Thomas will vote in favor of Trump's arguments. He has shown himself to be in the "ends justifies the means" camp and he will use as much inductive reasoning as possible to justify his decision.
Barrett, Gorsuch and Kavanaugh are likely to say that States have the right to determine eligibility of people on their ballots and they'll affirm Colorado's brief. This punts the larger question of Trump's guilt back to each individual State.
Jackson, Kagan and Sotomayor are likely to mention that Trump was given due process and a Colorado Court found that he was guilty in Colorado of aiding and abetting an insurrection, even though SCOTUS is not rendering an opinion on Trump's guilt or innocence. They are likely to say that Colorado has the right to determine who is on their ballots, as long as they follow their own rules and ensure things like due process.
Alito is a wild card. It's hard to know what he will do.
There is one argument that might get traction and it has to do with Congress' role is determining who can serve in office after violating their prior oath to the Constitution. This argument punts the bigger question to Congress. This is the mirror image of what McConnell did during the second impeachment when he said that it's up to the Courts to find Trump guilty, not the Congress. It's the "Tag, you're it" method of governing.
Roberts is going to be in the Solomonic limited ruling camp. He's going to avoid the big question, "Is Trump an Insurrectionist?". He's going to want to try to push the question onto Congress (which is what the text of the Amendment says). He's also going to push for a limited scope opinion that will get 6 or more votes, preferably 8. He does not want a 5-4 decision and he would like to avoid a 6-3 opinion.
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