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(Photo by Michael Gonzalez/Getty Images)
Have there ever been nine people on earth more convinced of their own pious righteousness? After Mitch McConnell stole the Gorsuch seat and shoehorned in Barrett so that SCOTUS could blow up Roe, these assholes still think that they’re a stabilizing force holding together American society. If only we just BELIEVE that the nation’s highest Court is a force for good, then we can make it through this together!
And so in this spirit the Court issued a per curiam order this morning ruling that Donald Trump cannot be disqualified from the ballot.
It was clear after oral argument that the justices were never going to let states boot Trump under Section 3 of the 14th Amendment. Sure, okay, the plain language of the Constitution says that “no person shall” hold office in federal or state government after engaging in “insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” But, see, if you squint real close, it also says — in invisible ink! — that this section only applies if Congress passes implementing legislation, so states shouldn’t get any bright ideas about keeping insurrectionists off the ballot.
TL, DR?
They took the “not self-executing” off ramp, and congratulated themselves for their Solomonic wisdom. (Presumably after a good hearty laugh at the months of professorial onanism over the definitions of “officer” and “oath.”)
“[I]f States were free to enforce Section 3 by barring candidates from running in the first place, Congress would be forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle,” the five male justices declaim, as if Congress hadn’t refused to seat many former Confederates elected to office by the states. That is right and proper, see, but a state barring insurrectionists from running for federal office on its own ballot is a grievous assault on democracy.
Any state enforcement of Section 3 against federal officeholders and candidates, though, would not derive from Section 5, which confers power only on “[t]he Congress.” As a result, such state enforcement might be argued to sweep more broadly than congressional enforcement could under our precedents. But the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible.
Perhaps the gender split is unsurprising — you really do have to have some balls to lecture states about nullifying millions of votes to keep a guy on the ballot after he mounted a coup that involved tossing out 20 million swing state votes.
An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times. The disruption would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the Nation has voted. Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.
The female justices, while concurring in the result, castigate their male colleagues for going beyond you can’t do that to here’s the only way that could be accomplished in the future.
“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,” Justice Sotomayor fumes in a concurrence joined by Justices Kagan and Jackson. But even the liberals agree that allowing Colorado to manage its own ballot would “create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.”
And Justice Barrett, while agreeing that the majority goes too far, is an island of one, instructing the American people and her sisters on the bench to come together and support this deeply undemocratic ruling for the good of the country:
The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.
Can’t we all just get along when we’re having our rights taken away? Shouldn’t we show grace and unanimity in the face of a countermajoritarian power grab? And if at the same time, the legitimacy of the institution they happen to embody is enhanced, well, isn’t that for the best as well?
Or we could simply acknowledge that the Supreme Court operates on nothing but vibes, spite, and naked partisanship. Maybe that one, actually.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
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