The Supreme Court Gets an "A"…After Writing Its Own Test
And so, surprising no one, the nine justices of the Supreme Court, men and women that, since they hijacked the government, have perhaps more to say about the direction of the nation than any other Americans, ruled that Colorado cannot remove Donald Trump from the primary ballot as an insurrectionist as defined by Section 3 of the 14th Amendment.
Following the line they took in oral arguments, the justices lamented the dysfunction that would ensue if a candidate for national office were forced off the ballot in some states but not in others. “Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the inauguration.” It is ironic that these sentiments are expressed in view of the chaos that ensued after the 2020 election, “up to and perhaps beyond the inauguration,” incited by the very person who would be the beneficiary of chaos avoidance here.
All electoral chaos is evidently not created equal.
In addition, conspicuous by its absence was any indication of whether they believed Trump was, in fact, an insurrectionist, a question that was either not sufficiently important to squeeze into the narrow window that the justices chose to crack open or, more likely, that they lacked either the will or the courage to answer it.
This is the most important feature of the entire affair—the justices refused to answer the question they were asked, the one raised by a number of eminent Constitutional Law professors and government officials, nor did they include an opinion on the only issue that really mattered.
Instead, they danced around it, turning the question into one of federalism. “States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”
Perhaps not.
But they do.
And it gets worse. Five of the six of the Court’s conservatives insisted that a Section 3 disqualification can only be invoked through federal legislation, thus excluding the judiciary and even a non-legislative action by Congress, such as refusing to count an insurrectionist’s electoral votes at a subsequent January joint session in which election results are certified. (Another irony, since Republicans were all too willing to refuse to certify Joe Biden, who even they have never accused of fomenting a coup.) As a result, if Trump wins, there is no way to prevent him from becoming president and tearing down the very system of government the Court was supposed to be defending.
The three liberals took issue with that—it was nice to see that they took issue with something. In a concurring opinion, they bemoaned that the conservatives’ interpretation had “shut the door on other potential means of federal enforcement.” With umbrage, they added, “We cannot join an opinion that decides momentous and difficult issues unnecessarily.” But they voted with the conservatives nonetheless.
In the end the justices proved only one thing—it is not difficult to answer a hard question if you turn it into an easy question, a tactic that the Court seems determined to employ in the immunity case as well.
In their unsigned order issued February 28, the justices agreed to take up the ludicrous question of whether a president enjoys absolute immunity for any crimes committed either in office or after he or she leaves. Realizing how crucial this issue is to the future of the republic and how much time was of the essence, the justices selected the week of April 22 for oral arguments.
Unlike in the Section 3 case, they did not wait until the hearing to again stack the deck, but rather right away phrased the question in such a way as to allow them to avoid giving an answer. The Court chose to decide, “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
That sentence reeks of subjective terminology, restricting the question to former presidents who were alleged to have committed crimes through official acts while in office, leaving aside if a president, former or current, can be prosecuted for unofficial acts, such as, say, rape. According to Norman Eisen, a senior fellow at the Brookings Institution, that phrasing was “clearly heavily negotiated” among the justices and “not the question that either of the parties presented.”
It does, however, fit right into what Trump’s legal team has put forth from the beginning—that although Trump may have taken action that could be demonstrated as an attempt to overturn the 2020 election, he did so as part of his presidential duties. If this laughable assertion is rejected, they warned, and Trump is prosecuted in a criminal trial, it would open the door to future presidents facing prosecution for their official acts, thus limiting if not destroying their ability to properly perform their constitutional role.
Special counsel Jack Smith had taken a different view, contending that the crimes of which Trump is accused are in no way a part of a president's official responsibilities, which, even if one is not a lawyer, makes a lot more sense…but it is not what the Court has opted to rule on.
Eisen went on, “If you grant complete insulation from criminal accountability…and that goes into the mix with all of these autocratic and even dictatorial aspirations that Trump and his allies are articulating, it has the potential to transform the rule of law in America.” If anything, that is an understatement…assuming the country actually still has a rule of law. “The Supreme Court,” Eisen concluded, “must slam the door on that.”
That they “must,” of course, does not mean they “will.” If the Court is as predictable in this case as it was with Section 3, we can expect a ruling that may or may not allow Trump’s D. C. case to go forward, but, if it does, restricts Smith sufficiently to give Trump a better than even-money chance of getting off.
Whether or not this is duplicity on the part of justices cannot be said definitively. But it is certainly cowardice.