Liberal Justices Should Demand A Price For Blessing Trump's Candidacy
They owe us and themselves that much
From the moment states began taking Donald Trump’s oath-breaking seriously, a Democratic Party composed of fighting liberals would’ve known what to say. Something along the lines of, “Donald Trump engaged in insurrection, and is thus disqualified from the presidency—but if our Supreme Court is too scared or corrupt to uphold the Constitution, we’ll just beat him anyhow.”
Instead, leading Democrats said basically nothing. Joe Biden did at least stipulate that Trump engaged in insurrection, but left the question of appropriate consequences up to the court, conceding implicitly that the rules of qualification might somehow not apply to him.
Through this time, Republicans were not so demure. The party of the failed coup claimed the mantle of democracy in hounding the Supreme Court to allow him on the ballot. Some of them said the people should decide whether the guy who tried to disenfranchise 80 million Americans by force should be eligible for high office again. Others threatened to disqualify Joe Biden on frivolous grounds as retribution.
And so, when the case reached the Supreme Court, the justices acted in accord with the consensus of political discourse. All six of the court’s conservatives echoed right-wing elites in some fashion or other. Brett Kavanaugh, who never met a voting-rights restriction he wouldn’t happily read into the Constitution, went to bat for the “principle” of democracy. Samuel Alito intimated that if Trump were disqualified, Biden could be as well, for engaging in foreign policy with Iran. Two of them (Alito and Neil Gorsuch) treated the lawyer arguing for the Colorado plaintiffs (a former Gorsuch clerk no less) with hostility. At the same time, two of the court’s three liberals (Elena Kagan and Ketanji Brown Jackson) indicated openness to joining Republicans in a supermajority opinion reinstating Trump on Colorado ballots and pre-empting any other states from holding Trump accountable for engaging in insurrection.
The lingering problem for this bourgeoning supermajority is that they lack sound legal grounds for exempting Trump from the Constitution in this way. Over and over again the justices returned to the legally irrelevant objection that upholding Trump’s disqualification would be messy. It might invite retaliation. It might create a state-by-state patchwork of presidential ballots—something independent candidates for president will be surprised to discover is grounds for Supreme Court intervention.
And so, when they convene to write the opinion of the court, they will have to invoke chickenshit arguments of one kind or another, some of which will contradict their longstanding views on questions of states’ rights or election law or the force of the 14th amendment.
My instinctive preference would be for the liberal justices to write an unassailable dissent, and let John Roberts and the five justices to his right further degrade their illegitimate majority with made up justifications for doing another favor for another Republican presidential candidate.
But insofar as the liberal justices want or are willing to provide cover to the other six—to validate their spoliation of the Constitution—they could soften the blow by using their votes as leverage.
THE AUDACITY OF NOPE
If nothing else, they should get something in return for signing on to feeble-minded, results-oriented reasoning.
The arguments the justices test drove on Thursday really are that weak. By the end of the proceeding, the one that appeared to have the most purchase was an atextual proposition first put forth by Amy Coney Barrett that states can not enforce section three of the 14th amendment against federal candidates. Roberts tried to lend heft to the idea by alluding to the historical fact that the framers of the 14th amendment meant to weaken not empower states. Multiple justices, including Kagan and Jackson seemed taken with the argument. They expressed skepticism that a single state like Colorado could make such huge decisions affecting the whole country.
But this is nonsense in every direction. It presupposes we live in a make-believe world where the Supreme Court is a passive-yet-captive observer of events. In the most literal way, Colorado is not seeking to impose its will on anyone except itself. It is the Supreme Court that has been asked to choose an adventure for the country: Either Colorado is wrong, and Trump must be eligible for its ballot; or Colorado has the power to omit Trump from its ballot, but other states may reach different conclusions; or Colorado is correct on every point and Trump is disqualified from the presidency for engaging in insurrection, full stop. Colorado only raises the question, it’s the Supreme Court as always that makes the huge decisions affecting the whole country.
Even if you flip the agency around, and stipulate that Colorado seeks to affect election outcomes in all other states—well, so what? States administer federal elections every two years, and the decisions they make about who is enfranchised, who has to wait in long lines, or who uses a butterfly ballot have ramifications that affect every state in the union. Partisan actors in a single state government can, through their chicanery, flip control of the national legislature or even moot the presidential ballots of voters in every other state, as Florida did in 2000. We are entwined because the federal republic entwines us, in this case as in every other.
Astonishingly, this is a dressed-up-fancy version of Trump’s actual defense. Because if states and citizens have no power to enforce the 14th amendment against federal office seekers, the disqualification clause only has force when it’s too late. Multiple justices sought to distinguish disqualification for engaging in insurrection from the other qualifying criteria, which states can enforce—presidents must be 35 or older, natural born citizens, and may not be elected more than twice or serve more than 10 years. These criteria are different, they argued, because the 14th amendment provides for an amnesty. Congress can cure an insurrectionist and restore his qualification for office by two-thirds majorities in the House and Senate. Section three, Gorsuch argued, is “about holding office and it's a particular kind of disability that can be removed by Congress and it's the only one like that, right? They can't remove age or citizenship.”
This is Trump’s argument: Even if he did engage in insurrection, the 14th amendment only bars him from holding office, not from seeking it, and if he wins, Congress can either cure him or deem him disqualified from office during the transition. States have no role.
It’s also very stupid. Yes Congress can in theory “cure” Trump with supermajority votes in the House and Senate, but Congress and the states can, also in theory, amend the entirety of the Constitution. By this logic, states must be required to allow Barack Obama to seek a third term this year on the grounds that a constitutional amendment lifting the prohibition against running three times might be ratified by the time the results are certified.
Do liberal justices really want to sign on to an opinion that glosses over such obvious defects?
Well, if they do, they can at least withhold their votes for concessions from the Republican justices.
Roberts would clearly like to avoid a partisan 6-3 holding that Trump’s insurrectionary activities somehow don’t count. If he wants liberal cover, it should come at a price.
The most obvious one would be to insist that Republican justices play no games with Trump’s dictatorial immunity claim. They can simply deny his appeal, or affirm the DC Circuit Court’s ruling at record speed, allowing his January 6 trial to proceed to a verdict well before the election. Make the Republican justices agree to that.
But there’s also the question of what an opinion reversing Colorado should say, and here the liberals can make the case that the Supreme Court will be a handmaid to insurrectionists if its opinion glosses over Trump’s role. The opinion can be scathing about Trump’s conduct without disqualifying him from the ballot, and if they’re not going to disqualify him, then it should be scathing.
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On Thursday, the Republican special counsel Merrick Garland appointed to investigate how classified documents ended up in Joe Biden’s archives issued a tendentious report clearing Biden of criminal wrongdoing, but essentially calling him too old and forgetful to be guilty of a crime.
The whole episode is an immense discredit to Garland and the Democratic Party leadership. But the ensuing firestorm underscores the potential power of a harsh scolding from a trusted authority. If the court’s position turns out to be that people like Trump can only be disqualified by acts of Congress, or by prosecutions for insurrection, then it can say Trump’s conduct after losing was a grave assault on the Constitution, even if Congress and the Justice Department didn’t treat it as such.
Kagan and Jackson should insist upon it.