SCOTUS Decides

Signe Wilkinson
an old cartoon but still relevant

The Supreme Court of the United States issued their judgement today regarding 45's ballot eligibility, posting on their website directly instead of from the bench. Just in the nick of time for Super Tuesday and Colorado's primary election.

The Supreme Court decision is no surprise, but it's still supremely disappointing. 

They ruled that Trump can remain on Colorado's ballot. Done.

It was unanimous, as I had predicted, and as I had also thought they would do, they issued the judgment per curium (meaning there is no primary author and no dissenting opinions). 

My thought: they turned a Constitutional question into a political issue. They showed their hand again, revealing a political body. 

Their main thrust was that it is a state issue. Because they were tasked to narrowly answer the question "Can Colorado disqualify him," they avoided the Constitutional question altogether. Their opinion was rife with that state issue. That it would be a patchwork of qualifications, that other states would retaliate and disqualify candidates from the other side, yada yada. 

The other justification was one that was totally erroneous. That Congress must be the one to decide this issue. But Section 3 says the opposite. Remember, Section 3 reads (emphasis mine):

"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

The language clearly says that Congress can remove the disqualification, not at all that they are bound to clarify this Constitutional edict. Section 3 is self-executing. Congress did not have to clarify any other qualifications for president, and they do not need to clarify this one.

SCOTUS also relied on the fact that a state was deciding on a federal office saying:

"We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency."

This is confusing. Aren't senator and representative federal offices? The Section clearly disqualifies senators and representatives from holding office in Congress under circumstances of insurrection. This part of their argument falls completely flat.

The opinion cited Section 5 of the same amendment as part of their reasoning. Section 5 of the Fourteenth Amendment reads simply: 

"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

In my opinion, they simply weaseled out. they dodged the real question, and as Sister Resister Anne pointed out, they are appearing to be "fair" to the Mango Mussolini, much like the press has been doing. All of this dancing around "fairness" and "equal opportunity" is giving a path for a dictator to come to power again.

The four women on the court did have a little more to say. 

Justice Amy Coney Barrett, in her bit, agreed in theory about what the three liberal justices said (below), but  basically concluded, Hey, we ruled. Accept it and get over it.

The liberal women had a bit more to say. They concurred with the judgment, but the three of them strongly disagreed on the Court's overreach of the question. 

In a dissent of the overall opinion, not the judgement itself, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson threw Chief Justice Roberts's words back at him. In last year's Dobbs decision, which stripped women of their reproductive rights, Roberts wrote: “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”

The three say that in this decision, the Court overreached in their opinion by not just answering the question before the court but opining on how the issue must be resolved in the future. The three write:

"They decide novel constitutional questions to insulate this Court and petitioner from future controversy.... Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment." 

They also point out:

"It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation."

They conclude, "What it does today, the Court should have left undone."

Burn. 

You know what this means, don't you? It means that we must vote vote vote. Get a blue supermajority in Congress. Pass some gol-darn laws!

I encourage you to read the entire judgement. It is not long. Though it is in legalese, it's short enough to go through a couple times to really grasp it. It's an important judgment, worthy of each of The People to read and digest it. 

Now, I go read the pundits' viewpoints. I'm sure I'll be back after I digest what the experts say.

Ann Telnaes