Colorado, among a number of states, has sought to disqualify Donald Trump from the ballot based on a straightforward reading of Section 3 of the 14th Amendment -- the insurrectionist clause. Yesterday, in Trump v. Anderson, the court ruled 9-0 that no state had the authority to do so. This was a victory for the former president who strived mightily to overthrow the results of his 2020 election defeat, but the five Republican men on the court gave him (and his and their party) a bigger victory. Their decision went much further than necessary to settle the dispute at hand.
And in the course of unnecessarily deciding all of these questions when they were not even presented by the case, the five-Justice majority effectively decided not only that the former president will never be subject to disqualification, but that no person who ever engages in an insurrection against the Constitution of the United States in the future will be disqualified under the Fourteenth Amendment’s Disqualification Clause — as the concurrence of Justices Sotomayor, Kagan, and Jackson witheringly explain. -- J. Michael Luttig
The concurrence of Justices Sotomayor, Kagan, and Jackson, objecting to the aggressive overreach of the majority, begins by quoting Chief Justice John Roberts (from the Dobbs decision): “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” The five Republican men were intent on deciding more (as Judge Luttig noted).
Reaching aggressively well beyond necessity is a pattern with the current Republican majority on the Roberts/McConnell Court. As Nina Totenberg suggested, “You do see something of a court that on some issues is very aggressive. And you’ve seen that in other areas where there isn’t even a decision by a court, and they take the case to review it. Now that’s weird.”
Weird? Well, no. That suggests something odd or even anomalous. By seizing Occam's razor we can carve out a better explanation: partisanship. Totenberg resists asserting that the court is partisan, but partisanship provides an account that's simpler and more clarifying than weird does and is thoroughly well-supported. An explanation that fits this Republican majority like a glove.
At one time, conservative judicial principles included judicial restraint, stare decisis, and respect for the elected branches of government. That's not in fashion at this court. Not by a longshot. Instead of limiting its decision to what is necessary to dispose of the case, it went much further, as Justices Sotomayor, Kagan, and Jackson write in their concurrence:
Today, the Court departs from that vital principle, deciding not just this case, but challenges that might arise in the future. In this case, the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the ground that he is an oathbreaking insurrectionist and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment. 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. Yet the majority goes further.
Even though “[a]ll nine Members of the Court” agree that this independent and sufficient rationale resolves this case, SOTOMAYOR, KAGAN, JACKSON, JJ., concurring in the judgment 2 TRUMP v. ANDERSON SOTOMAYOR, KAGAN, and JACKSON, JJ., concurring in judgment five Justices go on. They decide novel constitutional questions to insulate this Court and petitioner from future controversy. Ante, at 13. Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. 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. 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.
In other words, straying from the text of the amendment and imposing a judgment unsupported by any ruling precedent, the five Republican men precluded any action based on the 14th Amendment's prohibition to disqualify Trump or any other oathbreaking insurrectionist from the ballot apart from the five-man majority's specified "appropriate legislation" by Congress. They invented this constraint. That might seem weird to the uninitiated. But we can see that it serves a partisan purpose.
The 14th Amendment states that the disqualification of insurrectionists can be overcome by a 2/3 majority vote by both the House and the Senate. The justices, yesterday, ruled that if a majority in either house can block appropriate legislation, then the insurrectionists may serve. That's a perverse result, hardly faithful to the words or intent of the 14th Amendment. (These Republican justices often ignore, dilute, or distort the Civil War amendments.)
And as we know, near the end of the McConnell era when it takes 60-votes to pass legislation in the Senate, a minority of Senators may block appropriate legislation. In the other chamber, the Republican Speaker refuses to even bring up legislation that would pass with comfortable majorities, but is opposed by his far right colleagues. Minorities in both houses can block the will of majorities. There will be no appropriate legislation anytime soon. This 5-4 decision debilitates the insurrectionist clause.
The court ruled, without a case before it, that in any future case, no other federal court could enforce the 14th Amendment's insurrection clause. Even if, say, an oathbreaking insurrectionist were to be convicted of his/her actions in a court of law, no court could rule him/her off the presidential ballot. The Republican Supreme Court majority has preserved for itself the authority to decide -- ruling out of order a number of other possible paths to making a decision in a democracy, including by Congressional action (apart from "appropriate legislation" by the lights of the five Republican men) -- and ruling in a way that transparently offers an advantage to the candidate of the political party that appointed the five men in the majority.
The five-man majority is doing the bidding of the Republican Party, the party that planned and participated in the January 6 riot at the Capitol and conspired by other means over many months to overturn the 2020 election. If any elected officials participated in actions in that riot or that conspiracy, the five Republican men on the court have rendered it impossible to bar them from a ballot for president based on the insurrectionist clause.
The court reached out beyond what was necessary to decide the case in order to preclude accountability (most especially for the "petitioner," Donald Trump): "They decide novel constitutional questions to insulate this Court and petitioner from future controversy."
To reiterate, this is a pattern. In another 14th Amendment case, Rucho v. Common Cause, the Roberts Court decreed that gerrymandered legislative districts that gave one political party an advantage -- no matter how extreme -- over another, passed constitutional muster, ruling that the subject was thereby removed from the jurisdiction of the federal courts. Americans were denied constitutional remedies to these undemocratic assaults on voting and elections. Like yesterday's decision, this one favored the Republican Party, which in 2024 relies heavily on voter suppression and gerrymandering to maintain its power.
The decision in Trump v. Anderson is equally outrageous. It seeks to help Donald Trump, who still refuses to accept his loss to Joe Biden in 2020 and is putting on a clinic on delay-delay-delay for escaping legal accountability for criminal conduct. The Supreme Court has invented in this case a new firewall for him -- and for any and all oathbreaking insurrectionists (who in the Trump era reside overwhelmingly in the Republican Party). In reaching beyond what was necessary to decide this case, the Republican majority has tied the hands of Trump's political opponents.
Let's step back for a minute to look at the big picture: The Republican Party, which has won the popular vote for president once in the past 20 years -- George W. Bush's 2004 victory -- increasingly relies on the courts, the unelected branch of government, to secure public policy victories. And at the top of the federal judiciary, the Supreme Court, which Republicans have packed with ideologues, increasingly places constraints on the public policy options available to elected officials and individual citizens.
In a previous post, I quoted Jan-Werner Müller's book What Is Populism? Müller describes how Fidesz, Victor Orbán's political party, crafted a partisan constitution in Hungary. The result of their efforts: "the constitution sets a number of highly specific policy preferences in stone, when debate about such preferences would have been the stuff of day-to-day political struggle in non-populist democracies. Moreover, it excluded opposition parties in a double sense: they did not take part in writing or passing the constitution, and their political goals cannot be realized in the future, since the constitution highly constrains room for policy choices. In other words, under the new regime, the constitution makers can perpetuate their power even after losing an election."
As I wrote then:
Whether or not we regard the contemporary Republican Party as populist, Republicans -- long before the Trump era -- have followed the populists' strategy described by Müller: crafting constitutional constraints and commands to favor their party and to disadvantage their political opponents. The GOP has not, of course, sought to re-write the words of the United States Constitution. Instead, the party, through capture of the courts -- and domination of the nation's highest court -- has sought to constrain opponents of the Republican agenda through wholesale reinterpretations of the constitution, creating novel constitutional rights (that advance the Republican agenda), while brushing aside well-established constitutional judgments (effectively ruling Democratic policy choices out of order).
The rulings of SCOTUS's Republican majority too often foreclose change through the political process as practiced in a democracy. Campaigns and elections (and much more) are the stuff of politics. The process ensues as the winners, determined at the ballot box, endeavor to put public policies in place to fulfill their commitments. Yet a determined 6-3 or 5-4 majority, acting with indifference to election outcomes, may short-circuit "the stuff of day-to-day political struggle" (as Müller put it) . . .
This Republican majority has shed the conservative commitment to judicial restraint and stare decisis, it has endeavored to preclude constitutional remedies to assaults on voting, elections, and legislative apportionment, and it has diminished the authority of the other two branches of government to address public policy issues.
That's not weird. That's partisan. It is also profoundly undemocratic.
The Republican majority on this Supreme Court continues to craft a partisan constitution.