Dana Verkouteren via AP
An artist’s sketch depicts the scene at the Supreme Court as the justices hear arguments about the Colorado Supreme Court’s ruling that former President Donald Trump should be removed from the primary ballot, February 8, 2024, in Washington.
As expected, the Supreme Court has reversed the ruling from the Colorado Supreme Court removing Donald Trump from the state’s primary ballot. The unanimous decision in Trump v. Anderson held that only Congress can impose the penalty described in the 14th Amendment for people who commit insurrection—namely, that they are forbidden from holding federal office.
If states could decide who is eligible for the ballot, that resulting “disruption … could nullify the votes of millions and change the election result … Nothing in the Constitution requires that we endure such chaos.” Unbelievably, the liberal justices couldn’t even muster an actual dissent; they merely produced a joint concurrence agreeing with the above, and taking issue with other parts of the opinion.
This decision is a dog’s breakfast designed to help Donald Trump. But it’s also a reminder that the current composition of the Court is screamingly illegitimate, and worthy of blistering counterattack.
Let me briefly review the current state of the Supreme Court. As I have previously argued, this Court has less democratic legitimacy, and is more corrupt, than at any time in American history. The seat currently occupied by Neil Gorsuch was stolen from President Obama by Mitch McConnell in violation of all precedent and the Constitution. Five of the justices of the reactionary majority were appointed by presidents who took office after losing the popular vote. The sixth justice, Clarence Thomas, was indirectly implicated in the January 6th putsch through his wife, who was up to her neck in the plot and is widely known to be his closest political associate and “best friend.” And on the Senate side (which must confirm Supreme Court nominees), Republicans have won fewer votes for senators in every election since 1998, yet have controlled the chamber half that time.
Several of the justices have also been embroiled in probably the worst corruption scandal in the history of the Court. The full wretched details of billionaires and firms with business before the Court treating Thomas and Samuel Alito to fancy vacations, buying Gorsuch’s house, paying John Roberts’s wife, and so on can be found at ProPublica. But I think the best illustration of how deep the rot goes can be found in a recent episode of John Oliver’s Last Week Tonight show, in which Oliver drew up an actual legal contract offering to pay Clarence Thomas $1 million per year until he dies, plus give him an ultra-luxury motor coach worth $2.4 million, if he were to retire from the Court. And there was nothing illegal about that.
Then there is the fact that, you know, three of the justices were appointed by the plaintiff, yet did not recuse themselves.
Just as any of a dozen Trump scandals were an order of magnitude worse than Watergate, all this is wildly more outrageous than the penny-ante scandal that caused poor old Abe Fortas to withdraw his nomination back in 1968. Today, this is an institution in which “legal” outcomes can be bought with cash money on the barrel.
While the Court nominally held that Congress holds the power of ballot disqualification, in practice the Court just stole it for itself.
The corruption is not just a scandal of ethics. The decision in Trump v. Anderson is grossly hypocritical when compared with previous ones. In Shelby County v. Holder, for instance, Roberts gutted the federal Voting Rights Act despite the sweeping grant of power in the 15th Amendment: “The Congress shall have power to enforce this article by appropriate legislation.” Indeed, Roberts did not even specify what part of the Constitution the VRA supposedly violated. So on the one hand, the federal government can’t enforce the 15th Amendment with rules on certain states with a history of egregious crimes against democracy, but on the other, states aren’t allowed to enforce the 14th Amendment by kicking insurrectionists off the ballot; Congress must do that. The specific mechanism in the 14th Amendment by which Congress assumes this power, indeed, has almost the exact same language as what’s in the 15th Amendment: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Heads democracy loses, tails Donald Trump wins.
Incidentally, contrary to the worries about “disruption,” there are and always have been hugely elaborate and highly restrictive rules about ballot access varying wildly across states, as any Green Party member could tell you. The justices seem bizarrely ignorant about elementary facts about election law. Also, worries about a handful of states deciding the election are bizarre, given that’s exactly how the Electoral College works.
Trump v. Anderson also exposes the abject partisan hackery in the recent decision to grant certiorari to Trump’s attempt to get himself declared America’s Most Special Boy who is totally immune from prosecution. This Colorado decision was handed down on December 19; the Court took the case on January 5 and heard arguments a month later. In Trump’s immunity case, the Court rejected special counsel Jack Smith’s request for expedited hearing on December 22, so it went to the D.C. Circuit, which ruled against Trump on February 6. The Court then dithered for two weeks only to agree to hear the case and scheduled arguments for … April 22. That probably pushes any verdict out past November 7.
They are taking this utterly preposterous immunity case, in an unhurried fashion, to help Trump avoid conviction before the election. That is the only reason.
Anyway, as Mark Joseph Stern writes at Slate, while the Court nominally held that Congress holds the power of ballot disqualification, in practice the Court just stole it for itself. It knows that no such law will ever be passed, and even if it were to happen, a five-vote majority (with all the conservatives save Justice Barrett) sketched out a super-vague process, giving them an excuse to strike down any process that might be set up. In practice, insurrectionists are ready for the ballot, and lower-court judges have been stripped of the right to determine whether an insurrectionist should be denied the right to serve, even though other constitutional amendments do give judges that authority.
Elsewhere, the Court verges on trolling. The decision mentions that the 14th Amendment provides certain restrictions on state powers, like the stipulation in Section 2 that any state which disenfranchises part of its population will lose a corresponding amount of its representation in Congress, as supporting evidence for its argument that states shouldn’t have the power of ballot access.
On the one hand, this is an insulting reminder that the Court has never, ever enforced this section of the Constitution, not even during the height of Jim Crow when Black Americans in the South were prevented from voting by terrorist violence. On the other, there is a Section 2 case working its way up to the Court arguing for the conservative states, which immediately started disenfranchising their liberal voters the moment Roberts let them with Shelby, to lose representation in the House and electoral votes. This is absolutely certain not to happen.
Now, on its face it’s not crazy to think that disqualifying insurrectionists from holding office should be done by the national legislature, or perhaps by law enforcement. But there can be no doubt whatsoever that had Congress or the FBI done so, this Court would have invented some other pretext to reverse that decision. It has no consistent principles or interpretive frameworks other than what benefits the conservative movement, which today largely boils down to Donald Trump: specifically, keeping him out of prison and on the ballot where he can attempt to destroy American self-government once more.
Still, this decision does prompt one to consider once again what might have been done after January 6th, or what could be done in future. I along with many others argued at the time that the new Congress should have voted to expel anyone who voted to overturn the election, passed ironclad new voting rights protections including a total ban on gerrymandering, and cemented the decision by adding another four seats to the Supreme Court.
The Democrats of 2021, of course, were far too timid to attempt or even suggest that kind of aggressive action, outside of a handful of radicals. But chances are good something like this will have to be done to check the power of this lawless Court. Simply hoping Democrats will win every single election for the next decade or two is not going to cut it.
