If the Supreme Court Can’t Agree on Jan. 6, the Country Never Will

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When Kellyanne Conway injected into the political bloodstream the phrase of art “alternative facts” just two days into then-President Donald Trump’s tenure in the White House, much of Washington found itself undulating between disbelief and despondent. Were the very basics of verifiable truths going to be in dispute for the length of the Trump era?

Now, roughly seven years later, the question seems quaint—especially on a day when the Supreme Court met to consider if Trump was even eligible to seek a third presidential nomination in eight years given the events that took place on Jan. 6, 2021, at the Capitol. This column is less about the case before the Justices on Thursday—of which they seemed firmly opposed to allowing a little-used portion of the Constitution to bar the GOP frontrunner from the ballot—and more about how those in the courtroom talked about a dark day in our country that was also one of the most well-documented events in recent memory.

It was, to be blunt, like watching a counterfactual history, one in which the then-President of the United States did not summon his most ardent supporters to Washington, give them a pep talk in the wake of a decided loss at the ballot, and dispatch them to the Capitol with the stated mission of cajoling Congress to ignore voters’ will and to substitute their own pro-Trump judgment. Frustratingly, it neatly mirrored the divergent realities in American politics that seem dictated by party allegiance more than not-that-distant memory. Rather than accept what plainly happened before our eyes, several of the Justices seemed all too willing to paint a bald attack on democracy as something far less sinister.

Trump’s lawyers were not alone in positing that the tumult of Jan. 6 “was a riot; it was not an insurrection. The events were shameful, criminal, violent—all of those things—but it did not qualify as insurrection.” Justice Samuel Alito qualified in one question that it was “allegedly” an insurrection.

Chief Justice John Roberts, tasked with the unenviable goal of guiding his colleagues to a decision that spares the Court from looking like a partisan operation, seemed to nod to the challenge ahead in his question. “Insurrection is a broad, broad term,” he said. “And if there's some debate about it, I suppose that will go into the decision and then eventually … we would be deciding whether it was an insurrection when one President did something as opposed to when somebody else did something else?” At another point, Roberts branded the petition to disqualify Trump based on provisions of the 14th Amendment as “ahistorical.”

The question before the Court started in Colorado, where its top court ruled on Dec. 19 that Trump was ineligible to compete in that state’s March 5 GOP primary on the ground that he participated in an insurrection. Under the provisions put in place after the Civil War to keep Confederates from continuing their battle against the abolitionist United States, those who rose up against American democracy were seen as unsuited for public office. Colorado’s judges agreed that the prohibition extended to Trump given his role in rallying a mob and instructing them to head to Capitol Hill on the day Congress was set to complete the typically pro-forma certification of the election results from weeks prior.

The Court is expected to expedite its ruling in the case to decide Trump’s fate in Colorado—and likely beyond it, given Maine has taken a similar reading of the 14th Amendment. The Justices seemed plenty skeptical of the Colorado case with even liberal-leaning members of the nine-person panel suggesting that the contemporary application of the Civil War provisions were as novel as they were unreasonably disruptive.

But the contours of the conversation inside the Supreme Court’s chamber echoed the one that has unfolded for almost four years. Despite more than 1,200 people charged with crimes around the Jan. 6 attack and almost 600 guilty pleas entered, there remains a deeply held—and wrong—belief that what happened on Jan. 6 was somehow business as usual. Others incorrectly assert that the gathering at the Capitol was peaceful, or that the violent rioters were somehow organized by federal officials. The persistent—and, it needs to be said again, false—storyline that this was a false flag to discredit Trump shows no sign of relenting. One corner of the conservative-media echo chamber is more than eager to keep this bunk buzz going. A democracy doesn’t function well when its participants can’t even agree to see what is evident for all to see.

For his part, Trump’s lawyer seemed more ready to spar on the legal theory than the facts of Jan. 6. Responding to questioning, Jonathan Mitchell argued that even an “admitted insurrectionist” had a right to the ballot absent action from Congress, not courts. Later, Mitchell did a bit of clean-up in response to a question from Roberts: “We never accepted or conceded in our opening brief that this was an insurrection.”

It may have failed, but the attempts to override the results of a legitimate election are now being lightly dismissed as foolhardy enthusiasm from the MAGA world. The fact that, more than three years later, there are still corners of this country—and well-educated and -connected ones at that—willing to excuse Trumpist tendencies of excess linked to Jan. 6 says a whole lot about the current state of our nation and the election we’re about to undertake. It’s why writing off President Joe Biden’s sluggish poll numbers would be a mistake for Democrats, to ignore the disgust members of both parties harbor for Washington as an institution, and why Trump’s path back to power might be far easier than his critics would like to believe. The Court seems ready to put him back on the ballot in Colorado, but 2016 proved that Trump could win the White House without Colorado. The 2024 election—with or without the Court’s help—could test that thesis again. 

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Write to Philip Elliott at philip.elliott@time.com