SCOTUS Running Amok

In a case entitled Trump v. Anderson, the Republican-appointed justices of the Supreme Court have once again sought to lay waste to a provision of the U.S. Constitution. This time, however, they did it with the partial blessings of the Court’s three liberal members and Justice Barrett who also wrote a concurring opinion. The subject of their latest assault is Section 3 of the Fourteenth Amendment (otherwise known as “the Disqualification Clause”). That provision bars persons involved in an insurrection from holding a state or federal office (see, “Trump’s Fourteenth Amendment Problem”). In a nutshell, the Court unanimously held that the Colorado Supreme Court lacked the authority to bar an insurrectionist (in this case, Donald J. Trump) from serving as an officer of the U.S. government.

All nine of the Court’s justices were united in a desire NOT to enforce the terms of the Disqualification Clause against the likely presidential nominee of a principal political party as they wanted to place Trump’s fate in the hands of the voters and not the courts. Still their motives and rationales differed widely. Moreover, the reasoning underlying all of the three separate opinions was largely dishonest, highly flawed and in the case of the majority opinion politically biased. It is perhaps ironic that the justices would prostitute themselves to this extent in what may generously be characterized as an effort not to issue a decision which would cause a further erosion of the public’s confidence in the Court’s willingness to carry out its duties in an even-handed and unbiased manner.

The choice facing the Court was to either not uphold an important (but rarely utilized) Constitutional mandate or render a decision that would effectively decide the 2024 presidential election. It had been placed in a similar position in 2000 when it was asked to decide the case of Bush v. Gore, a decision that would determine the outcome of that year’s presidential election. Its decision in that case was so politically charged that it greatly undermined public confidence in the Court. In fact, the rationale employed by the Court in that case was so suspect that its own opinion included a caveat that it was to have NO precedential value. This itself was a shocking statement as one of the principal functions of the Court is to provide guidance to the decision-making processes of the lower courts.

It's not at all clear that concern for the Court’s declining reputation was the only thing that prompted the justices’ decision.  It is also highly likely that they were also very concerned about their own personal safety as well as the safety of their family members. Following the 2020 election Trump had embarked on a campaign to convince his supporters that the election had been stolen from him by nefarious means. In addition, he personally invited militia groups to attend a rally at which he incited them to attack the Capitol, all in an effort to prevent the peaceful transition of power to his successor. In the resulting melee a few people were killed and over 140 police officers were injured. But that was only the beginning of Trump’s efforts to incite his supporters to harass and attack his perceived enemies. He continued to use his Truth Social media platform to incite attacks against prosecutors, judges, witnesses and jurors involved in the cases now pending against him and this has necessitated that his targets take extraordinary steps to assure their safety.

The potential for violent actions by Trump’s supporters against persons involved in the legal proceedings against him would seem pale in comparison to the possible actions that might be taken against the Court’s justices were they to issue an opinion bringing an end to his political ambitions. This concern was underscored this past weekend when Trump warned at a political rally held in Dayton Ohio that if he lost the 2024 election, there would be a “blood bath.” His campaign later tried to explain that he was only referring to the economic havoc that might occur in the automobile industry under a second Biden administration even though the nation’s economy (including the auto industry) has prospered during the Biden administration.

In reality, his statement at the Dayton rally is the very type of plausibly deniable communication that Trump has frequently employed. A prime example of this type of communication was his statements urging his supporters to fight like hell to save their country at his “Stop the Steal” rally on January 6th. His statements understandably led to the attack on the Capitol. At the trial held in the Colorado District Court Professor Peter Simi, an expert on communications among political extremists, explained that this form of communication is well understood by political extremists as a call to action. Thus, the justices rightly feared that the retribution Trump has vowed to take on his political enemies would immediately be directed against them.

You now might be wondering whether the Court nevertheless had sound legal reasons for its decision to reverse the ruling of the Colorado Supreme Court. That thought, however, is undermined by the very manner in which the justices reached their decision. The first clue can be found at the outset of the opinion issued by the Court’s majority. Rather than being subscribed by the five justices who issued it (Justices Roberts, Thomas, Alito, Gorsuch and Kavanaugh), it was unsigned and labeled as “per curium.”  This nomenclature is generally employed in short unanimous memorandum decisions without dissenting and concurring opinions, not in landmark decisions with far-reaching implications. Thus, it would appear that none of the justices who supported that opinion even wished to have his name associated with it.

Secondly, one of the cardinal rules of judicial interpretation is that a court’s rulings should be cast in the simplest and narrowest manner. That very point was made at the outset of the concurring opinion issued by the Court’s three liberal Justices which observed that

"Today, the Court departs from the vital principle, deciding not just this case, but challenges that might arise in the future.”                 

This guidance enables courts to avoid prejudging the outcome of future cases before they have even had a chance to analyze the specific facts of those cases. Indeed, in this case there were available other less-inclusive rationales which the justices might have employed to support their decision to reverse the ruling of the Colorado Supreme Court. For example, they could have simply ruled that under Colorado law the Secretary of State has limited discretion in determining which candidates seeking federal office may be excluded from appearing on a ballot. Such a finding was readily available and would have effectively justified reversing the ruling of the Colorado Supreme Court.

The problem with basing its decision on this rationale is that it might not have fully resolved all of the problems created by Trump’s actions in fomenting the January 6th attack on the U.S. Capitol.  That’s because the Colorado legislature, as well as those of other Democratic-controlled states, would likely have immediately responded by amending their election laws to give their respective secretaries of state the power to remove from their ballots the names of persons involved in the January 6th attack. Thus, Trump’s presidential candidacy could again be placed into jeopardy with the result that his political fate might once again find its way into the reluctant hands of the justices of the U.S. Supreme Court.

Similarly, the Court might have simply chosen NOT to hear Trump’s appeal and allowed the Colorado Supreme Court’s ruling to stand. It was certainly under no obligation to even accept Trump’s appeal. In addition, it was by no means clear that Trump could even win Colorado’s 10 electoral votes so, in all likelihood, the Colorado court’s decision would NOT have affected the outcome of the 2024 election. Trump lost Colorado to Biden in 2020 by 14 percentage points and that was before the Court had overturned Roe v. Wade fueling a widespread Democratic backlash at the polls. Here again, however, declining to review the Colorado decision also might have encouraged other states to follow Colorado’s lead. This very likely possibility could have also forced the Court to ultimately address the question of whether the Disqualification Clause should be applied to Trump, a question which all nine of the Court’s justices seemed unwilling to address.

It was that possibility that most likely prompted the Court’s nine justices to seek a more far-reaching rationale for their decision; namely, that the state courts lack the power to enforce the Disqualification Clause.  In support of this proposition the majority’s opinion first pointed to Section 5 of the Fourteenth Amendment which simply states that "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”  This led the majority to suggest that Congress has never empowered the state courts to enforce the Disqualification Clause. That proposition is wholly erroneous since, with few exceptions, the states have always had the power to establish and enforce the rules for both state and federal elections. Thus, what the Court needed to do was to find a basis for concluding that the federal government had withdrawn that power with respect to the Disqualification Clause.

Still, it was perfectly logical that the drafters of the Fourteenth Amendment might have wished to limit the power of the states to enforce the Disqualification Clause as well as the other dictates of the Fourteenth Amendment. After all, in 1868, when the Fourteenth Amendment was ratified, the federal government (and a majority of the states) had little reason to believe that those states that had joined the Confederacy would enforce the Disqualification Clause. Even 100 years later, after the Civil Rights Act had been passed, it was still difficult to get a southern court to convict Byron De La Beckwith for his murder of civil rights activist Medgar Evers. In fact, it took three trials to convict De La Beckwith as his first two trials had ended with a hung jury.

However, finding that Congress had never expressly taken such action, the justices embarked on a search for a basis from which they might infer a limitation on the power of the states to enforce the Disqualification Clause. To this end the majority reasoned that the entire Fourteenth Amendment was an effort to limit the power of the states with respect to electoral issues. It would therefore follow that the power of the states to enforce the Disqualification Clause was also intended to be limited. That contention, however, is unconvincing because Section 1 of the Fourteenth Amendment, otherwise known as the “due process clause” expressly limits the power of the states to act. If the drafters of the Fourteenth Amendment had intended to limit the power of the states to enforce the Disqualification Clause, they would have drafted that provision in a similar manner.

The Disqualification Clause also expressly states that insurrectionists can only be exonerated by the affirmative votes of two-thirds of the members of BOTH houses of Congress. This is an exceedingly high bar (even higher than the Constitutional requirement for removing a sitting president). This raises a strong inference that the drafters of the Fourteenth  Amendment considered violations of the Disqualification Clause to be extremely serious. It also lends credence to the assertion that the Disqualification Clause should be rigorously enforced, a proposition which is in conflict with the majority’s conclusion that states have no power to enforce it. Even more problematic, it also raises the question that if it takes a two-thirds majority in both houses of Congress to exonerate an individual who has been adjudicated of having committed insurrection, what empowers the nine justices on the Court to do so.

The majority’s opinion also noted that the Congress had previously enacted a statute (the “Confiscation Act of 1862) before the Fourteenth Amendment was ratified authorizing the federal government to enforce a prohibition virtually identical to the one included in the Disqualification Clause. The majority, however, never addressed whether that Act was intended to simply authorize the federal courts to enforce its prohibition and/or to limit the power of the states to do so. Moreover, the majority did not address whether the Disqualification Clause was intended to supersede that statute. Instead, the majority simply concluded that the power of the states to enforce the Disqualification Clause had been withdrawn. It leaves you wondering just where did that conclusion came from.

The rationale seized upon by the three liberal justices is no more convincing.  Their motivation to limit the power of the states to enforce the Disqualification Clause seems to have emanated from the concern voiced by Justice Kagan at the oral argument that any ruling that did not deny all states the power to enforce the Disqualification Clause could lead to chaos. Sparking Justice Kagan’s concern was a fear that the upcoming presidential election could potentially be thrown into chaos with significant differences among the states as to how the underlying factual issues (whether the Capitol riot was an “insurrection” and whether Trump’s actions made him a “participant” in that insurrection) would be resolved. Clearly even more disconcerting to the three liberal justices justices was that those issues would ultimately have to be resolved by them; a situation which they desperately wished to avoid.

The three liberal justices ultimately based their opinion on a prior Supreme Court ruling that the states “cannot use their control over the ballot to undermine the National Government.” However, they did not explain just why having different state findings of fact regarding the Disqualification Clause was any different from the states having different rules relating to the conduct of elections. The differences in state election laws can also skew the outcome of federal elections. Indeed, the Republican “red state” initiative begun following the 2010 census was designed to do just that.

A recent article published in The Atlantic by Professor Lawrence Tribe and former Judge Michael Luttig, two of the nation’s premiere constitutional scholars, had the following to say about that contention:

“All nine justices were persuaded by the appeal of a fatuous argument featured prominently in the briefs supporting the former president—the argument that no single state should be able to disqualify a candidate for the presidency. . . But that argument . . . was always utterly empty of constitutional substance. Anyone who knows anything about the United States Constitution and the way the judicial system operates . . . has to know that a single state could never have rendered a disqualification ruling that would bind the other 49 states, an admittedly untenable result.”

Complicating the justices’ problem is the fact that the five justices who issued the majority opinion also found that Congress has never acted pursuant to the authority granted to it in Section 5 of the Fourteenth Amendment to authorize the federal government to enforce the Disqualification Clause. Therefore, they concluded that Congress must first do so before even the federal government can enforce the Disqualification Clause. This feat of academic dishonesty required the majority to ignore the existence of the Confiscation Act referred to above (and which they had mentioned in their own opinion). In short, the majority created out of thin air an inference that the states could not enforce the Disqualification with respect to persons seeking federal offices and ignored an Act of Congress that had actually authorized what is now the Department of Justice to do so.

The Court’s liberal justices (Justices Sotomayor, Kagan and Jackson) objected to the majority’s opinion insofar as it states that the Disqualification Clause remains inoperable until Congress enacts a statute specifying when, how, and by whom that provision can be enforced. It bogles the mind for the majority to conclude that the states’ residual authority to establish and enforce election laws enables them to enforce the Disqualification Clause with respect to state offices, while at the same time concluding that the states are prohibited from enforcing that same provision with respect to federal offices by reason of a provision (Section 5) which they argue Congress has never been implemented.

Moreover, neither the majority’s conclusion that the states can enforce the Disqualification Clause with respect to state offices and that the federal government cannot enforce it with respect to federal offices have anything to do with the Court’s holding that the Colorado Supreme Court lacks the power to cause Trump’s name to be removed from its state’s ballots. Court pronouncements that are unnecessary to dispose of a pending case are referred to in legal parlance as “dictum.”  Such statements are generally thought of as being both without legal effect or precedential value. What undoubtedly concerned the three liberal justices was that these two gratuitous rulings would leave unenforceable with respect to federal office holders a mandate of sufficient importance to require being placed in a Constitutional Amendment.

It was undoubtedly the possibility that Special Counsel Smith could easily augment his January 6th complaint against Trump to include an insurrection charge that the majority wished to avoid. Indeed, they were even willing to wholly ignore the Confiscation Act to achieve that end. In stating that Congress must first act before the Disqualification Clause can be enforced, the majority undoubtedly realized that it would be virtually impossible to get our divided Congress to enact additional legislation implementing the Disqualification Clause. Perhaps more importantly, Jack Smith would not even try to obtain a criminal conviction against Trump for insurrection knowing that a majority of the Court’s justices were lying in wait to reject any such effort.

Justice Barrett, in her two-paragraph concurring opinion, expressly adopted the reasoning of the majority’s opinion while inexplicably rejecting the ramification of their opinion that the federal government cannot enforce the Disqualification Clause. She labeled that conclusion both unnecessary and divisive.

The result of the Court’s decision is that the Disqualification Clause has effectively been repealed even though a host of legal scholars (many of whom welcome being labeled as “conservative”) submitted amicus briefs calling for the decision of the Colorado Supreme Court to be affirmed. So much for our Chief Justice’s repeated assertions that his Court is free of political bias and “only calls balls and strikes.”