The Supreme Court's ballot ruling is absurd. They don't care.
There are more important things than logic and legal principles.
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Last week, the Supreme Court gave Donald Trump a big assist by agreeing to hear his presidential immunity claim, dragging their feet long enough to ensure that even if they find against him, there’s no chance a trial would be finished by Election Day.
Not content to save Trump from the criminal consequences of his insurrectionist actions, the Court yesterday ensured that he would suffer no electoral consequences as well.
In an unsigned per curiam opinion, the Court ruled that Colorado cannot keep Trump off the presidential ballot despite having determined he engaged in an insurrection.
A “per curiam” opinion is one written “by the court.” It has no specific author and represents the views of all nine justices. All nine agreed that Section 3 of the 14th Amendment, which bars insurrectionists from taking office, cannot be enforced at the state level. Resolving this was the question at issue, but five of the Court’s conservatives then went on to craft a special rule for insurrectionists only, one that would insulate Trump regardless of his future actions.
The three liberal justices wrote a concurrence that really should have been a dissent instead, and Justice Amy Coney Barrett wrote something confusing and unnecessary, patting the Court on the back for deciding the issue and saying, absurdly, that “writings on the Court should turn the national temperature down, not up.”
Taken together, all of the decisions show a profound inability of this Court to grapple with someone like Donald Trump, and it’s regrettably more proof that the courts won’t save us from him.
States make decisions about ballot eligibility all the time
Across all three opinions, all nine justices bought into the incorrect notion that allowing states to determine ballot eligibility is positively unheard of and somehow encroaches upon the province of the federal government: “The result could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record).”
The opinion frets about a “patchwork” of state election laws arising and disrupting uniform ballot access. But states have always set their own eligibility requirements for presidential candidates to appear on the ballot. That’s not merely a tradition that evolved over time. Rather, it is grounded in Article I, Section 4 of the Constitution — the states and elections clause. The states’ ability to set their own ballot requirements, including for president, means that some candidates will indeed be on the ballot in some states and not others.
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For example, Robert F. Kennedy, Jr. is currently scrambling to get on the ballot in multiple states, having formed his own political party, “We the People.” For him to get on the ballot under that banner in California and Delaware would require him to get people to register with that new political party. In North Carolina and Hawaii, the new party is not formed until a certain number of registered voters sign up. In Texas, RFK Jr. needs tens of thousands of people to participate in precinct conventions. Kennedy may not succeed in his efforts in all states, meaning he will appear on some state ballots but not others.
There’s another reason it’s rich to see the conservatives on the Court suddenly very eager to declare that the federal government, not the states, should have the most authority regarding elections. That’s because, under Chief Justice John Roberts, those same conservatives have gleefully dismantled the Voting Rights Act by asserting that the federal government can’t possibly tell the states what to do when it comes to voting.
In 2013’s Shelby County v. Holder, Roberts, writing for the conservative majority, dismantled core protections of the Voting Rights Act by throwing out the “preclearance” requirement. Preclearance required jurisdictions with a history of racial discrimination to submit any proposed changes in voting rules to the Department of Justice for review to ensure the proposed laws did not have a discriminatory effect. Declaring the preclearance formula unconstitutional, the opinion waxed rhapsodic about how there is a “fundamental principle of equal sovereignty” of the states and complained about how the Voting Rights Act made states “beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact.”
So, when states want to enact racist voter suppression laws, it’s unfair and unconstitutional for the federal government to set any limitations or conditions to stop them. However, when states want to specify requirements about insurrectionists taking office, that somehow runs afoul of federal power. It’s “states’ rights for me, but not for thee.”
Not standing strong against this bit of Calvinball is perhaps the biggest disappointment of the concurrence from the three liberal justices. Justices Sotomayor, Kagan, and Jackson agree with the conservatives that allowing Colorado to kick Trump off the ballot would create a “chaotic state-by-state patchwork at odds with our Nation’s federalism principles.” This ignores the fact that patchwork already exists when it comes to voting.
The three liberal justices, along with Barrett, could have stopped here, simply deciding that states cannot enforce Section 3 that bars insurrectionists from public office. That holding would still allow for other federal enforcement mechanisms, such as a federal criminal trial involving an insurrectionist or, as Mark Joseph Stern explained at Slate, the use of more general federal statutes that require the government to comply with laws.
But such a limited holding wouldn’t fully protect Donald Trump from consequences for his past insurrectionist acts or any future ones he might deploy to win in 2024. So, the conservative majority held that the only way an insurrectionist could be barred from office is if Congress passed legislation to enforce the Fourteenth Amendment’s insurrection clause.
What’s more, the Court said that Congress should “ascertain what particular individuals are embraced” by Section 3’s language forbidding insurrectionists from holding office. Functionally, the majority has provided only one path forward to stop Trump: that Congress must pass a law that more clearly defines what an insurrection is, who an insurrectionist is, and what penalties should apply, and do so in time for the November 2024 election.
This new requirement is not just something made up of whole cloth by five justices. It is something that will never come to pass. The Court knows full well that Congress is broken and isn’t capable of enacting any law whatsoever about complicated matters like this, particularly with any speed. Conservative legislators are not going to agree to anything that might limit the future political prospects of Trump or other MAGA types who participated in January 6, particularly as they believe that the conduct of Trump and others on that day was laudable, not criminal. So, since no law exists, there appears to be nothing that Trump could do that would result in him being removed from the 2024 ballot for insurrection.
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Essentially, according to the Court’s majority, the insurrectionist clause has just been sitting on the books for 150 years with no enforcement mechanism attached, waiting for Congress to do something.
It’s precisely because Congress can’t be trusted to do such a thing that the Reconstruction Amendments passed after the Civil War were self-executing. Constitutional provisions that are self-executing do not require the passage of federal laws to make them enforceable. For example, the Thirteenth Amendment, which banned slavery, took effect upon passage. The Fourteenth Amendment’s guarantee of equal protection didn’t require a corresponding law explaining what equal protection was or to whom it applied. John Roberts himself wrote an opinion only 15 years ago saying that the Fifteenth Amendment’s expansion of the right to vote to include Black men was self-executing.
But as of yesterday, just a slice of the Fourteenth Amendment — the one barring insurrectionists from taking office — is meaningless and toothless unless Congress wants to pass a law about it.
The important thing is protecting Trump
In some ways, dissecting why the majority’s view is not supported by the law is a fool’s errand. The conservatives on the Court are operating from a position of delivering results, not of applying the law. That’s what makes opinions like this one so incoherent. Roberts, Thomas, Alito, Gorsuch, and Kavanaugh needed to figure out a way to protect Trump’s presence on the ballot, and if that meant ignoring over 100 years of jurisprudence about the Fourteenth Amendment, so be it.
As Adam Serwer wrote in The Atlantic, their behavior highlights the “fraud of originalism.” These are jurists who are ostensibly committed to discerning the original meaning of what the Framers intended when they wrote, debated, and passed the Reconstruction Amendments. To hew to that original meaning here would have required them to acknowledge that the Framers intended that people who engage in insurrection don’t get to be president. That result, though, was undesirable to the right, so conservative justices happily tossed their commitment to originalism out the window.
It could be said that this behavior means that decisions from this Court are becoming unpredictable. In reality, it’s just the opposite. All one needs to do to discern what the Court’s conservatives will decide is to look for the results conservatives want. No matter how absurd those results might be, no matter how much those results fly in the face of existing precedent, the right-wingers on the Court will make sure they win.
That’s it for today
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We’ll be back with more tomorrow. Until then, thanks for reading.
Thank you!
Not surprised that the opinion is absurd, given that 6/9 are questionable and/or corrupt. It all started with Bush v Gore.
Time to expand the Court. Glad Raskin etal are working on legislation.
Illegitimate court. Soon we will have no option but to simply ignore all rulings from this court