Dem
51
GOP
49
Well, the Supreme Court issued its decision in the Colorado ballot-access case yesterday. And our assessment, in a sentence, is this: They reached the right conclusion, but took the absolute worst possible route to getting there.
First, the "getting it right" part. It's clear what the fellows who wrote the Fourteenth Amendment intended, but it's also clear that they did not anticipate—gasp!—how American politics would evolve in the next century and a half. In particular, they did not appreciate the extent to which one political party would become willing to abuse the norms of constitutional government. Is there really any question that a Republican Party that would try to impeach Joe Biden for... something, something, mumble, mumble, would eventually discover that Biden or some future Democrat had "encouraged insurrection" by not securing the border, or calling for an increase in taxes, or supporting trans athletes, or saying meany-pants things about Donald Trump? You just can't let states have the power to disqualify candidates for president for whatever reason they deem fit, because you cannot guarantee they will operate in good faith. This is obvious enough that the Supremes agreed 9-0 on this point. So, Donald Trump will stay on the Colorado ballot, and those of the other states (Illinois, Maine) that had also booted him.
The political impact here is probably a wash. Booting Trump off the ballot would have made Democrats feel good, but would not likely have cost Trump any EVs (except maybe one in Maine). At the same time, it would have fed into his "victim" narrative and would have enraged the base. So, while this is nominally a "loss" for Democrats, it's not much of one. And while it's nominally a "win" for Republicans, again, it's not much of one.
And now, let us move on to the "worst possible route" part. Again, we are not lawyers, and we certainly did not go to fancy law schools. And yet, we don't think we could have screwed this up worse than Chief Justice John Roberts and his colleagues did. Given that the Supreme Court in general, and the Roberts Court in particular, need to project legitimacy, and a sober-minded calling of balls and strikes, a decision this important and this closely watched should have been 9-0 or 8-1, and that's the end of it. And Roberts should have done whatever needed to get there. Then the Court would be speaking with one voice, with liberals and conservatives united.
But that is not what happened. Yes, as we note above, the actual question before the Court was decided 9-0. But, in a move reminiscent of the Dred Scott decision, the five conservative men just could not help themselves, and felt the need to go further. So, they added a bunch of extra findings that were not needed. That, in turn, caused Amy Coney Barrett to write one concurrence, and the three liberals to write another (that is a scorcher). And so, a decision that is 9-0 on the top line is as bitterly divided as is possible when you look more closely. A John Marshall or an Earl Warren would never have let this happen, not with a decision this critical.
So, what did Roberts and his four merry men feel the need to add? Well, they decreed that the Insurrection Clause does not automatically apply to candidates for federal office, and that if it's going to apply, Congress must pass enabling legislation.
At first glance, this does not change things all that much. Non-federal candidates can still be disqualified (although that's only happened once, ever). Insurrectionists who try to take a seat in Congress have invariably been disqualified by having their credential refused. That's happened seven times, and it could still happen in the future. And so, the Court's decision really only applies to candidates for president and vice president. Those are very important offices, obviously, but it's also hard to imagine that a president or VP was ever going to be disqualified successfully.
That said, this decision involves the five conservative justices making "law" up out of thin air. There is zero evidence that the Fourteenth Amendment was not intended to apply to federal officeholders, especially since the text of the Insurrection Clause literally specifies that it applies to "member[s] of Congress" and "officer[s] of the United States." More importantly, there is no reason to argue that the Insurrection Clause requires enabling legislation. And if it does, does that mean that, for example, the other parts of the Fourteenth ALSO require enabling legislation? Did Americans just lose due process rights because there has been no enabling legislation? Are the descendants of enslaved to be returned to bondage, since Congress did not pass enabling legislation ending slavery? What about the other amendments? Did gun owners just lose the right to bear arms? After all, Congress has never passed a law defining "arms." Does that include crossbows? Broadswords? Howitzers? Nuclear weapons? Did newspapers just lose the right to print political opinion?
As a sidebar, note that we predicted yesterday that the Supremes would keep Trump on the ballot, and that they would kick the can over to Congress. So, we're not surprised by this outcome, but we are disappointed in how badly it was handled.
And the thing is, it gets worse. Perhaps the five conservatives realized their opinion is worthy only for use as bird-cage liner, because none of them took responsibility for writing the opinion. And let us tell you that it may well be the worst-written opinion we've ever seen. Again, we're not lawyers, but (Z) has read plenty of SCOTUS rulings, including many from the 19th century, when judges tended to use archaic language and tended to suffer from serious cases of verbal diarrhea. And in case you don't believe us, actual lawyers are saying the same thing. For example, conservative attorney George Conway decreed the opinion and the concurrences to be "fundamentally incoherent." He continued:
I think they did have a very difficult time with it because I don't think any of the three opinions make any sense whatsoever. I think these opinions are fundamentally incoherent and they're fundamentally arbitrary. And I think it just shows the difficulty the court had in trying to select an off-ramp here. I mean, they totally rejected Trump's principal arguments, which were that the president is somehow not an officer of the United States, and the other argument, which was that he did not engage in an insurrection.
Note that last observation, about insurrection, because it's coming back in a short while. So too is the bad writing.
The initial response to the decision was that it makes it nearly impossible to hold an insurrectionist would-be president responsible for their insurrectionist behavior. This was the conclusion that the three liberals drew, writing that the 5-4 portion of the ruling would "foreclose future efforts to disqualify a presidential candidate under [the Insurrection Clause]." While this is probably true, we think it grossly misses two much bigger, albeit related problems.
See, because of the bad writing, and because of the failure to define ANY terms (including insurrection), the Court has said "Congress, it's up to you. Do... whatever." To point out the first problem this creates, consider what happens if Donald Trump wins this year's election, and then, on 1/6/2025, Democrats in the House (assuming that party regains the majority) assert their Supreme Court-granted right to reject him as president. Since yesterday's decision is very vague, it's at least possible it could happen, triggering a constitutional crisis, in which both sides claim the law and precedent are on their side. Democrats are not known for their willingness to play hardball like this, but since they (quite reasonably) regard Trump's return to the presidency as a giant constitutional crisis, they'd really be choosing the lesser of two constitutional crises. And keep in mind that while many things must be approved by both chambers of Congress, there are some things that are the province of only one chamber, like approving ambassadors. An argument could be made that since the House has sole responsibility for resolving disputes about who is president, then a law disqualifying a president on the basis of being an insurrectionist would only have to pass the House. So, control of that chamber alone might just be enough to reject a president, as of yesterday.
There are quite a few articles, including the one linked in the previous paragraph, talking about a potential 1/6/2025 crisis like this. However, we see a much larger problem, and it's one that nobody seems to be talking about. At least, none of the dozens of sites we looked at had anything about this. Not only did the five in the majority fail to define what constitutes insurrection, they also did not specify a timeline for the exercise of Congress' newly bestowed authority. And so, consider this situation: Joe Biden is reelected in 2024, but Republicans gain control of both chambers of Congress in the 2026 midterms. Not only is there nothing stopping the GOP from passing a bill on Jan. 3, 2027, declaring Biden to be an insurrectionist (and Kamala Harris, along with him, thus putting the Republican Speaker in the White House), they would have clear Supreme Court sanction for doing do. And, assuming the Republicans would be willing to put aside the filibuster in order to steal the White House (which, who are we kidding, of course they would), then they could do it with a bare majority in both chambers. Who needs something as onerous as impeachment under those circumstances?
Or, to flip it around, what if three more senators had been willing to side with the Democrats after Trump got himself impeached the second time? The articles of impeachment were approved by a majority of the House, while 57 senators voted to convict. That's within a hair's breadth of the votes needed to pass a bill declaring Trump to be an insurrectionist, even WITH the filibuster in place. Again, why would any member of Congress consider an impeachment ever again? Surely any offense that is impeachable can also be framed as an act of insurrection against the U.S., right?
To summarize, then, we have a decision that is bitterly divided, undermines the legitimacy of the Court, has no real basis in anything other than hand-waving and wishful thinking, is badly written, does not really solve the problem it was supposed to solve, and brings with it the very real possibility of triggering a constitutional crisis in two different ways. And that's before we get into the fact that the Supremes were willing to fast-track this one, but are sitting on the presidential immunity decision. Nice job, Mr. Chief Justice. Somewhere, Roger Taney is smiling at the prospect of moving up, out of the doghouse. (Z)