Those quotations, which bookend the concurring opinion released on Monday by three liberal justices on whether former president Donald Trump can be removed from the ballot in Colorado, amount to the judicial equivalent of fighting words. They constitute a two-part slap across the face of their supposedly conservative colleagues, accusing them of outrageous judicial activism in shielding Trump from being disqualified from holding office under Section 3 of the 14th Amendment.
“In a sensitive case crying out for judicial restraint,” write Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, the court “abandons that course. … Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.”
The justices aren’t this explicit, but I’ll be their anger translator: You guys are in the tank for Trump in a way that is unnecessary, unseemly and — take that, Chief Justice — hypocritical.
Justice Amy Coney Barrett took a similar position, but with a far more soothing tone. She didn’t join the court’s broadest holding, but she implicitly lectured her liberal colleagues for stirring up the masses. “In my judgment, this is not the time to amplify disagreement with stridency,” Barrett wrote. Stridency, really? Gendered much?
“The Court has settled a politically charged issue in the volatile season of a Presidential election,” Barrett cautioned. “Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”
To translate again: Simmer down. The children can hear us.
This is the surprising, and surprisingly furious, denouement of a dispute that was both high-stakes and lacking in evident suspense, especially in the wake of an oral argument in which the justices seemed unanimously disinclined to bounce Trump from the ballot.
I confess to being somewhat perplexed, as were a number of liberal legal scholars with whom I spoke after the ruling, about the apparent magnitude of the rage. There is an infuriating tails-Trump-wins, heads-his-critics-lose aspect to the decision in Trump v. Anderson: Where exactly is the forum in which Trump is finally held to account for his actions?
But the practical implications of the ruling, for reasons I’ll get to, aren’t enormous. What helps explain the level of anger here, I suspect, is the liberals’ fury not just at this decision but also at the continuing conservative power grab, all under the bogus cloak of judicial modesty. And this is pure speculation, but I wonder whether the liberals’ frustration over other aspects of the court’s behavior, such as the undue delay in hearing the Trump immunity case, might be boiling over and manifesting itself in the Colorado ruling.
The court’s unanimous bottom line in Trump v. Anderson, that a single state doesn’t have the authority to use Section 3 to disqualify a candidate for federal office, was correct, as a matter of constitutional law, the structure of our federal system and the broader public interest. Section 3, enacted in the aftermath of the Civil War to deal with the problem of ex-Confederates seeking to return to power, prevents former officials who “engaged in insurrection” from holding state or federal office.
The Colorado Supreme Court, concluding that Trump was an insurrectionist within the meaning of Section 3, ordered him kept off the Super Tuesday primary ballot as a result. “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency,” the court said in its per curiam ruling. As the liberal justices noted: “Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles. That is enough to resolve this case.”
Where the two sides diverge is with the majority’s digression into the arena of federal enforcement of Section 3 — “musings,” the liberal justices said, that “are as inadequately supported as they are gratuitous” and that would “insulate all alleged insurrectionists from future challenges to their holding federal office.” The majority asserts that, for Section 3 to be enforced, Congress must enact further legislation outlining how and to whom it applies — a hurdle that the court hasn’t required for any other section of the 14th Amendment.
Not just that, the majority instructs, any such legislation must reflect “congruence and proportionality.” What gives with making pronouncements on issues that aren’t remotely implicated by Colorado’s action?
I get that the court would prefer to nip future challenges to Trump’s legitimacy in the bud; it wants out of the unpleasant and seemingly unending business of deciding Trump cases. Could Congress refuse to certify Trump’s election on the grounds that he is an insurrectionist not entitled to hold office? Could an executive order by an insurrectionist president — call him Donald Trump — be challenged on the grounds that he is not entitled to hold office? Could a prosecution by an insurrectionist attorney general — call him Jeffrey Clark — be similarly called into question?
Confronted with these questions down the road — say, once Trump was back in the White House — there’s little chance the court would declare a sitting president constitutionally disqualified from holding office.
All of which helps explain why the liberal justices are fed up with a court that professes judicial restraint but consistently arrogates power for itself. The most telling aspect of Trump v. Anderson might be the glimpse it offers behind the scenes of a court that, even when it appears unanimous, is bitterly divided.
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