The only question left after today’s Supreme Court arguments over whether former President Donald Trump can be disqualified is how many different justices will write concurring opinions in what is likely to be a 9-0 decision in favor of Trump.
Asked to review the decision by the Colorado Supreme Court that found Trump is disqualified under Section 3 of the 14th Amendment, and removed him from that state’s presidential primary ballot, the questions by conservative and liberal justices alike showed that the high court has lost its way.
A quick recap of the highlights shows both the expected and unexpected views that will end the multiple efforts across the country to disqualify Trump because he either “engaged in insurrection” against the Constitution or offered “aid or comfort to the enemies” of the Constitution.
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As the very first questioner for both the pro-Trump lawyer and the lawyer representing the Colorado voters who sought to disqualify Trump, Justice Clarence Thomas reminded all of us that he refused to recuse himself from this case, despite his wife actively supporting the insurrection.
While a likely reason for Thomas asking the first question is his seniority on the court, one can’t help but feel it was a bit of Thomas giving liberals the middle finger—effectively saying: “I’m here and there is nothing you can do about it!”
Justice Samuel Alito made a few arrogant digs at “elected state judges”—implying that such lowly political creatures could not be trusted with important constitutional questions, while a life-tenured judge like himself must be beyond reproach. Justice Neil Gorsuch (a Colorado native) showed his litigator background as he appeared irritated when his efforts to cross-examine the Colorado voters’ lawyer—Jason Murray—were stymied by Murray’s answer. Gorsuch snapped at Murray for trying to argue with Gorsuch’s hypothetical questions in what appeared to be a moment of reversion to their prior power dynamic (Murray had served as Gorsuch’s judicial clerk).
But the real nails in the coffin for the Trump disqualification arguments came from two liberal justices: Justice Ketanji Brown Jackson and Justice Elena Kagan.
Associate Supreme Court Justice Clarence Thomas and his wife Virginia Thomas.
Drew Angerer/Getty ImagesBrown Jackson revealed herself as a textualist in her questioning of Murray about what the Framers had intended with the disqualification provision. She focused on the fact that the provision failed to specify that the president—and vice president—were encompassed, asking: “Why didn’t they put the word ‘president’ in the very enumerated list in section three? The thing that is really troubling to me is I totally understand your argument, but they were listing people that were barred and the president is not there.”
This led to a discussion of the legislative history surrounding the provision’s wording, and Murray appeared to be trying to make the point that given the fact that the very purpose of the disqualification was to prevent the rise of “charismatic” Confederate leaders after the Civil War rising through the ranks to be elected made it obvious that the office of the presidency must be encompassed. Brown Jackson did not appear persuaded.
It's a good time to recall that Justice Brown Jackson previously proclaimed herself as a textualist during her confirmation hearings.
Unlike conservative proponents of textualism who seem only to use the interpretive doctrine when it suits their political agenda, Brown Jackson may actually believe in the doctrine, despite the common sense problems with looking at the intentions of long-dead white men to govern modern-day life.
But it was Justice Kagan’s questions that most clearly showed the high court’s likely conservative/liberal unified front on this case. Kagan asked the pro-disqualification lawyer: “I think the question you have to confront is why a single state should decide who gets to be President of the United States. In other words, this question of whether a former president is disqualified for insurrection. It sounds awfully national to me.”
Therein lies the problem. Kagan—and likely all the justices—are so taken with their own role as the ultimate arbiters of how government runs that they have lost sight of a basic tenet for our system of government: federalism.
As Jason Murray put it in answering Brown Jackson’s question about textualist intent: “Federalism creates redundancy.”
Supreme Court Chief Justice John Roberts and Associate Justices Elena Kagan, Neil Gorsuch, and Brett Kavanaugh.
Leah Millis/Getty ImagesMurray’s answer really means that there is nothing wrong with 50 states having 50 different outcomes about who is qualified to be on their ballots. To borrow a phrase from Mao Zedong’s political strategy, what is wrong with letting “a hundred flowers bloom”? Of course, Mao’s strategy was likely a way to flush out his political opponents so he could exterminate them, but unlike that totalitarian regime, our country is founded on the idea that the states are not controlled by the federal government in such areas as voting.
The real answer to Justice Kagan’s question about why Colorado gets to decide who is president is that they don’t. Colorado only decides for Colorado—and that is how the system is supposed to work. Any concern about uniformity should be decided not by the high court but by Congress.
Certainly, this outcome should be theoretically comfortable for the conservative justices who are perfectly content to let the states decide whether a woman can control her own body rather than having a uniform right. Any concerns about a lack of “manageability” are misplaced because the real dangers are not from different outcomes that may be processed through the courts, but about the actions of insurrectionists who attain power. Their actions will be unreviewable and untouchable.
Nor should the justices be concerned with any “splitting the baby” solutions such as letting Trump stay on the Colorado ballot but ruling against him in the still pending case on whether he has “presidential immunity” from prosecution.
That kind of consideration, far from being Solomonic, is actually exactly the kind of political thinking that they should avoid. Their job is to apply the law and not take into account the political effect of their decisions. That includes the political effect upon their own reputations and the reputation of the judiciary.
It’s late in the day for the Supreme Court, but they should remember the adage that was followed by Judge James Edwin Horton—who courageously ignored the risk to himself and career by setting aside a racist verdict in the Scottsboro Boys trial. Judge Horton later recalled the motto of his maternal grandfather passed down to him through his mother: “Let Justice be done though the Heavens may fall.”
The justices of our nation’s highest court should be less concerned about seeking shelter from the heavens and just do justice.
