Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson accuse the conservatives of deciding “novel constitutional questions to insulate this Court and petitioner” — that is, Trump — “from future controversy.” For daring to quote Chief Justice Salmon P. Chase’s 1869 opinion on the 14th Amendment clause at issue, the liberal justices accuse the majority of “musings … as inadequately supported as they are gratuitous.”
Their venom is hard to understand except as an expression of the polarization that accompanies all things Trump. After all, the liberal justices agreed on the outcome: Colorado can’t use Section 3 — which bars officeholders who “engaged in insurrection” from future office — to exclude presidential candidates. That means Trump must appear on primary ballots and the 2024 presidential election, despite the wishes of some very confident law professors, must be decided by voters.
The liberals’ objection, at least in part, is apparently about what should come next in the event that voters elect Trump. Sotomayor, Kagan and Jackson seem to believe that federal courts might be able to consider Trump’s eligibility again in the election’s aftermath or even once he is president. Hence the liberal justices’ complaint that “the majority shuts the door on other potential means of federal enforcement” of Section 3.
They’re vague on what this means. Perhaps they were moved by an amicus brief that said 14th Amendment challenges to an alleged insurrectionist’s eligibility are not “ripe” until “after Election Day.” If the liberal justices got their way, perhaps a losing presidential candidate could sue before the inauguration to disqualify the election’s winner. Acts of a new administration might be challengeable under Section 3.
For the conservative justices, the way to enforce Section 3 is by convicting Trump of the crime of insurrection. The liberal justices seem to believe that shouldn’t be necessary. They would stop Colorado from pulling Trump’s name from ballots but keep Section 3 disqualification hanging over his candidacy and, if there is one, his second administration.
Think about that for a second. The liberal justices say they ruled against Colorado to avoid “a chaotic state-by-state patchwork” in the presidential election. But they want to invite continuous post-election court challenges to “alleged insurrectionists” that would create just as much uncertainty and possibly “nullify the votes of millions,” as the majority puts it. As New York University law professor Rick Pildes noted, if a candidate for president “is going to be disqualified, the time to do that is before the election, not after he has taken office” — certainly if the goal is avoiding chaos!
The liberal justices refer to the Trump disqualification effort as “a sensitive case crying out for judicial restraint.” Yet they would keep alive the prospect of a judicially ordered replacement of a president-elect or president without congressional authorization. That’s an extraordinary role for the courts to play. Even if the concurrence’s vision is a constitutionally defensible interpretation of Section 3, it hardly reflects a commitment to judicial restraint.
Indeed, the liberal justices’ reasoning leaves open the question of why they even joined the conservatives in ruling against Colorado. They point to “federalism principles,” which counsel against too much state variation in presidential elections. But the Supreme Court could have created uniformity, or tried to, by ruling that Trump is nationally disqualified as a constitutional matter — that Jan. 6 was an insurrection, that Trump engaged in it and that the 14th Amendment forecloses him from holding office. Not one justice went there.
Why? For one, such a ruling would appear illegitimate. And if it would appear illegitimate today, it would certainly appear illegitimate at a later period in the election process. If the courts are going to eliminate a presidential candidate, the public needs confidence that removal is not based on judicial whim. Hence the majority’s insistence that disqualification follow a tailored process created by Congress.
The liberal justices couldn’t abide the majority opinion, which limits the avenues for disqualification lawsuits against Trump if he wins in November. But neither could they — given the best opportunity they are likely to receive — abide opining that the Capitol riot disqualifies Trump.
The campaign to remove Trump from the ballot was going to fail, whether on the liberals’ narrow grounds or the conservatives’ somewhat broader ones. But it seems to have succeeded at exacerbating ideological divisions on the Supreme Court for no good reason. Once again, Trump’s opponents prove as adept at weakening institutions as he is.
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