After showing a remarkable lack of interest in the underlying facts, the U.S. Supreme Court has kept an adjudicated insurrectionist — by definition unfit to be president — on the ballot.
Apart from Justice Jackson, during oral argument, the Court asked almost no questions about Colorado’s predicate finding that Donald Trump engaged in insurrection: That on Jan. 6, 2021, following two months of frenzied attempts to overturn his election loss, Trump summoned supporters to the capitol, goaded them with false and incendiary claims that their votes had been “stolen,” then prodded the frothing mob to storm Congress in session.
Just three weeks after the argument, the Court ruled that states cannot remove insurrectionists from the presidential ballot under Section 3 of the 14th Amendment.
Apart from the substance of the ruling, the partisanship of the court’s timing is glaring: It took them only three weeks to restore an insurrectionist to the ballot, but they need seven months to rule that presidents can’t assassinate their rivals.
The Court keeps an adjudicated insurrectionist on the ballot
Sec. 3 of the 14th Amendment is short, does not lack clarity, and is not ambiguous. It bars anyone from federal office who “engaged in insurrection” after they swore an oath to support the Constitution. The opening words, “No person shall…” make the ban mandatory, not optional.
The U.S. Supreme Court could have reversed or limited the Colorado Supreme Court’s determination that Trump had engaged in insurrection, but it didn’t. That ruling remains legally intact.
Avoiding the shameful details of J6, alleged originalists on the Court got creative instead. Despite agreeing that Section 3 applies to candidates for president, and apparently agreeing that Trump engaged in insurrection, the high court ruled nonetheless that states could not enforce the insurrectionist ban without a separate act of Congress, lest “chaos” ensue in federal elections.
Congress, Court point at each other
The court’s 5-4 majority decided that Section 3 isn’t self-executing, meaning it has no force or effect in the absence of additional congressional action. Building an off-ramp to keep Trump on the ballot, “conservative” jurists crafted a new legislative hurdle that has never been applied to the 14th Amendment.
Although Section 5 of the same amendment states, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” that language does not give Congress the sole or exclusive right to act, it does not bar state or Supreme Court enforcement of the 14th Amendment (or any other amendment), and it does not declare itself null and void, “unless and until Congress says otherwise.”
The Court making up language to defer to Congress is even more farcical considering that GOP Congressional leaders, for their part, left Trump’s insurrection up to the courts. Despite initially agreeing that Trump orchestrated the Jan. 6 capitol attack, GOP leadership voted against his second impeachment, claiming it should fall to the courts, not Congress, to hold him accountable.
Specious timing
The speed with which the Court restored Trump to the Colorado ballot — just three weeks after oral argument — delivered Trump an immediate boost the day before Super Tuesday, when voters in fifteen states were headed to the polls.
The quick timing of Trump’s insurrection stands in stark contrast to the presidential immunity case, on which SCOTUS deliberately dragged its feet for months.
Special counsel Jack Smith asked the Supreme Court to decide Trump’s immunity claims in December. They refused, waiting instead for the Court of Appeals for the District of Columbia to weigh in. The D.C. Circuit weighed in with a unanimous and thorough decision rejecting Trump’s immunity claim, issued the first week in February. Then the Supreme Court waited nearly a month, and decided it would like to hear Trump’s immunity claim for itself, after all, and set the immunity hearing for late April.
A late April hearing will likely result in a late June opinion; that opinion could again return the case to the appeals court to address any number of inquiries, which would prompt Trump to seek another appeal just to push the trial date past Nov. 5. In rejecting Smith’s December request, and delaying the ruling until late June, (likely pushing the trial start to late October), the Court gave Trump’s campaign the key gift of seven months’ delay.
Although no one expects the Court to countenance Trump’s claim that presidents can assassinate political rivals with impunity, the delay all but guarantees that Trump will not stand trial for his attempt to overturn the 2020 election while it matters to voters.
Their decision to slow walk the immunity ruling is a gift of time, not substance, but it will have the same effect. Even a Court this nakedly partisan cannot grant a president complete criminal immunity, but their careful delay all but assures that, for Trump, the question will become irrelevant.
Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, Howey Politics, and RawStory. She and her wife split their time between South Florida and Chicago. Follow her on substack.