Photo by Allison Bailey/NurPhoto via AP
Demonstrators stand outside the Supreme Court in Washington, February 8, 2024.
“Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
So wrote Supreme Court Justice John Paul Stevens (appointed to the Court by Republican Gerald Ford) in his dissent in Bush v. Gore, in which his partisan Republican colleagues voted to stop the vote-counting in Florida, lest Democrat Al Gore carry the state and defeat Republican George W. Bush for the office of president.
Stevens’s assessment must now be applied to the current “Gang of Five” feral Republicans on today’s Court—Chief Justice Roberts and Associate Justices Thomas, Alito, Gorsuch, and Kavanaugh—who yesterday negated Section 3 of the Constitution’s 14th Amendment on constitutional grounds.
Negating the Constitution on constitutional grounds? Welcome to Republican justice in the age of Donald Trump, which apparently is even more partisan than it was in the age of George W. Bush.
In Monday’s decision, all nine justices agreed that a state could not bar presidential candidates from appearing on the ballot because they had violated Section 3 of the 14th Amendment’s ban on any people who’d taken an oath to support the Constitution who “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” But, the Gang of Five Trumpists went on to rule, neither could the federal government, through its courts, unless Congress were to pass a law that said, in essence, well, the federal government can in fact do what Section 3 says it can, so we don’t know why we have to pass this law, but the Gang of Five said we should.
Four justices took issue with the majority ruling that Congress had to pass such a law: the three Democratic-appointed justices (Kagan, Sotomayor, and Jackson) and one Republican (Barrett). They noted that the case before the Court only asked it to rule on whether a state could strike such candidacies from its ballots, not whether a federal court needed a specific congressional law empowering it to do what Section 3 said it could. They noted that since the passage of the 13th, 14th, and 15th Amendments in 1865, 1868, and 1870, respectively (the Reconstruction Amendments banning slavery, requiring due process and equal race-blind justice under the law, and ensuring the right to vote to male former slaves), the courts had consistently viewed the provisions of those amendments as self-executing: that is, requiring no congressional action to make the amendments’ provisions enforceable.
Until yesterday, that is.
Time was when the far right would rail against “judicial activism,” by which it meant the liberal decisions of the Warren Court. But the activism of this generation of right-wing judges puts that of the liberals to shame. Bush v. Gore was only the opening act. Prodded by Sam Alito, a jihadist if ever there was one, the Court went beyond the Mississippi statute it was asked to rule on to strike down Roe v. Wade, and used another decision to invite a case that would enable it to circumscribe public employees’ right to an effective union (which case then appeared, and which the Court did indeed circumscribe in the Janus ruling).
But Monday’s ruling eclipsed all those in its law-flouting chutzpah. The majority justices said, in essence, the Constitution says such and such, but so what? In theory, it calls into question all constitutional provisions that have been self-executing. In practice, it means that Donald Trump (or anybody who stormed the Capitol on January 6th, for that matter) need not fear being banned from the presidency for having fomented an insurrection.
Combining theory and practice, it could mean that Trump could serve more than two terms as president: The 22nd Amendment limits a president to two terms in office, but Congress never felt the need to pass a law saying the 22nd Amendment wasn’t just fooling around and actually meant what it said. Should Trump get a second term and use this week’s decision to go for a third, the right-wing activist justices will doubtless cite this week’s handiwork to allow him to do so, or concoct another reason. Their indifference to their duties as what Stevens termed “an impartial guardian of the rule of law” is breathtaking.
