The Unsettled Supreme Court
By Richard C. Gross
“There is nothing either good or bad, but thinking makes it so.”
--William Shakespeare, Hamlet in “Hamlet,” Act II, Scene 2
It may be time to bet on whether the Supreme Court will find Donald Trump immune from prosecution when he was a sitting president.
Lower courts in Colorado, Maine and Illinois disqualified the former president from appearing on their Republican Party primary ballots, finding him guilty of staging an insurrection on Jan. 6, 2021, thus violating Section 3 of the 14th Amendment to the Constitution.
Not so, the Supreme Court ruled unanimously Monday in the Colorado case. The matter in the other states is now moot. But the ruling was unanimous in name only. Look deeper.
The decision was not without its controversy. Its three liberals and a lone conservative, Amy Coney Barrett, agreed to accept the majority’s decision for the sake of unity over an issue involving a presidential candidate with a history as a troublemaker.
And, apparently to avoid dissension on the bench, the justices never even broached the subject of insurrection in their deliberations. Isn’t that like trying to determine guilt in a bar fight without discussing if anyone was drunk?
The 14th Amendment was adopted after the Civil War to ensure that former Confederate officials could not hold civilian or military office if they previously took an oath to protect the Constitution, if they engaged in insurrection or rebellion or gave aid and comfort to enemies of the Constitution.
“In my judgment,” Barrett wrote, “this is not the time to amplify disagreement with stridency. The court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.”
Is Americans’ temperature because of Trump? If so, what will it be like if he reoccupies the White House? Does Barrett carry a thermometer in her handbag?
“For present purposes,” she wrote, “our differences are far less important than our unanimity: All nine Justices agree on the outcome of the case. That is the message Americans should take home.”
What if Americans don’t “take home” this idea of a unanimous opinion that isn’t unanimous just because the justices say so? More quarrels among the polarized about Trump? Is the court monkeying with us?
“The price of that unanimity is that it leaves the matter [of immunity from prosecution] unresolved,” wrote Washington Post reporter Aaron Blake in an analysis.
The crux of the ruling was that states don’t have the authority to disqualify a presidential candidate from the ballots. If they did, they would promote national chaos since different states have different rules about the reasons for dumping someone from a ballot.
“The real takeaway is that the courts aren’t going to save us from ourselves and that the only surefire way to ensure that an anti-democratic candidate for president doesn’t succeed is to beat him at the ballot box,” Stephen Vladeck, a professor at the University of Texas School of Law, told the Post.
Post columnist Ruth Marcus, who as a law school graduate often focuses her opinions on the courts, wrote Monday she was “perplexed” after conversations following the ruling with liberal legal scholars “about the apparent magnitude of the rage” over the court finding. Like road rage? Not healthy.
“There is an infuriating tails-Trump-wins, heads-his-critics-lost aspect to the decision in Trump v. Anderson,” she wrote. “Where exactly, is the forum in which Trump is finally held to account for his actions?”
Excellent question, and one would think millions of Americans must be asking, no? The court took it upon itself last week, just as it did in this disqualification issue, to reach further than it might have in deciding to take on the matter of Trump’s immunity from prosecution, another major Trump case.
I can hardly wait for the ruling on that one, can you? Trump seems to get away with so much. I’m not too optimistic after this unanimity business.
The justices reasoned that use of Section 3 of the 14th Amendment cannot apply to disqualify Trump from appearing on a ballot because Congress did not enact a law finding him guilty of insurrection. But the minority complained the majority unnecessarily ruled out “other potential means of federal enforcement” of the section. Coverup?
“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,” the minority opined. “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.”
J. Michael Luttig, a conservative former appellate judge who wrote that the 14th Amendment can be used to disqualify Trump, told the Post:
“The court today decided that no person in the future will ever be disqualified under Section 3 of the 14th Amendment regardless of whether he or she has engaged in insurrection or rebellion against the Constitution of the United States. The decision is stunning in its overreach.”
The majority included Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Trump appointed the last two plus conservative Barrett. No individual justice was identified as writing the majority opinion, which is unusual.
Courts in three states found that Trump should be disqualified from his name appearing on the primary ballots because he was involved in trying to overthrow his own government to stay in power even though he lost the 2020 election to Joe Biden. Why is the Supreme Court more correct in its judgment than the three lower courts?
Didn’t something similar with overreach happen a couple of years ago when the 6-3 majority conservative court ruled against abortion as a constitutional right? That law stood for nearly 50 years. Didn’t the court rule on what it believed was a correct ideological conservative stance and not on the merits of a human right?
(On abortion: France enshrined the right of abortion in its constitution Monday, a world first and a boon for women. Viva la France! Of course, such a momentous breakthrough can’t happen here. America is as united on abortion as Yugoslavia was as a country.)
With the right ingredients, civilization can be rewarding.
Richard C. Gross, who covered war and peace in the Middle East and the Pentagon, was foreign editor of United Press International and the opinion page editor of The Baltimore Sun.
Good analysis. SCOTUS will not grant immunity unless they have lost their mind..