Following a unanimous ruling in the Supreme Court, we’re in a brave new world of completely backwards reasoning and it will not be long before someone insists we need to cancel the election entirely to save democracy.
Under anything resembling normal circumstances, a unanimous decision from the Supreme Court, that is a ruling that has brought such disparate minds as Clarence Thomas and Sonia Sotomayor together in harmony, would be evidence of its accurate reasoning. It might also be seen as proof that, contrary to much of what passes for conventional wisdom, the system can and does work more frequently than cynics would care to admit. It’s no secret many doubt the Court’s insistence that political preferences are magically suppressed once a jurist dons the magisterial black robes and almost as many on both sides insist the nine members of the Supreme Court in particular are merely politicians in disguise. A case that unites the court, in this framing, should certainly be seen as an example where politics couldn’t possibly have applied. How could it when they all agreed? Sadly, unity remains impossible if Donald Trump is involved and despite a 9-0 ruling that he cannot be removed from the ballot at a state level, the media ignored the reality before them that democracy cannot survive partisan actors in each state deciding who is qualified for office and who is not, nor does anything in our Constitution authorize state judges or officials from barring people who have not been convicted of any crime for running for office. In the lead up to the ruling, supposedly intelligent, educated, and informed people convinced themselves that was the case after a Democrat dominated Supreme Court in Colorado ruled without a trial of any kind that former President Donald Trump was an insurrectionist, the 14th Amendment which does not mention the president at all applies to the president, and they have the power to enforce it. Yes, this was the extremely unlikely trifecta required to bar the former President from the ballot, and yet the always suspect ruling by the Colorado Supreme Court was immediately lauded and praised by the experts. J. Michael Luttig, who was once upon a time a conservative and a judge himself, should certainly have known better. Instead, he described the ruling as “masterful” in December. “Yesterday’s decision by the Colorado Supreme Court was masterful. It was brilliant, and it is an unassailable interpretation of the 14th Amendment,” he told MSNBC’s Morning Joe. He also insisted criticism of the decision as political was misguided, pay no attention to four progressive justices writing the ruling against their preferred Presidential candidates chief opponent. “Those who would characterize this decision as ‘political’ or ‘politics’ from a liberal state supreme court are misguided. That’s, of course, what the former president and his supporters will say. There could be nothing further from the truth. This was a straightforward application of the 14th amendment in plain terms.”
ABC News’ so-called panel of experts, meanwhile, blamed the former President for not mounting a lengthy defense in Colorado for a crime he was not charged with in the state or elsewhere, upending the basic principle that one is innocent until proven guilty. “Trump could have had more time to present more evidence,” explained Mark Graber, a constitutional scholar and law professor at the University of Maryland. “He’s been given numerous opportunities to present evidence.” Another expert appeared to accept the ruling as the final say and declared it was a threat to Trump both in Colorado and elsewhere. “I think it may embolden other state courts or secretaries to act now that the bandage has been ripped off,” explained Derek Muller, a Notre Dame law professor. “This is a major threat to Trump’s candidacy.” At the same time, almost everyone studiously ignored the miraculous trifecta required to believe this ruling would stand, even though the majority’s opinion was demolished in the dissent from the very same Colorado Supreme Court. Even if you assume that the 14th Amendment applies to the president and can be invoked at the state level via the courts or some other administrative function rather than via the votes of actual representatives, you cannot deprive someone of their rights – even a person as dastardly as Donald Trump – without due process. “Our government cannot deprive someone of the right to hold public office without due process of law,” Justice Carlos Samour, a Democrat who appears not to have lost his mind, wrote in his dissent. “Even if we are convinced that a candidate committed horrible acts in the past — dare I say, engaged in insurrection — there must be procedural due process before we can declare that individual disqualified from holding public office.” Above and beyond any other potential reasons to believe the 14th Amendment didn’t apply in this case, this should have been everyone’s chief concern. How can you accuse someone of the monstrous crime of insurrection, which is on par with treason, without an actual criminal charge and a fair trial? Absent both, the default position is that a person remains innocent and enjoys all of their rights as an American citizen. In other words, Colorado sought to punish the former President without actually convicting him of anything. This precise punishment is doubly fraught because, by removing him from the ballot, voters are also being deprived of their right to support the candidate of their choosing. It should have been impossible to believe that the Supreme Court would stand by and allow the rights of millions of people to be shredded without due process of any kind, even should they have reached the same conclusion on the application of the amendment and how it is implemented. Incredibly, this is not what Judge Luttig meant when claimed, “This is the most pressing constitutional question of our times,” after the Supreme Court agreed to take up the case. “And it will be a test of America’s commitment to its democracy, to its constitution and to the rule of law for all the reasons that are coming to the forefront this morning.” He was, ironically, calling for the opposite: The due process and democracy itself be suspended, and acting as if the Supreme Court would surely agree.
Regardless, there was at least some indication proponents of this view had their doubts the Court was truly going to rule in their favor. After oral arguments in February, there was widespread recognition that even the most liberal Justices were highly skeptical. As CNN put it, “The Supreme Court signaled Thursday it is poised to back former President Donald Trump and fend off a blockbuster challenge to his eligibility to appear on Colorado’s ballot, potentially by a wide margin…Even some members of the court’s liberal wing posed difficult questions to the lawyers opposed to Trump.” For example, Justice Ketanji Brown Jackson, a Joe Biden nominee, noted, “They were listing people that were barred and ‘president’ is not there. I guess that just makes me worry that maybe they weren’t focused on the president.” Justice Elena Kagan questioned what might result if every state can bar candidates in a presidential election, asking, “Why should a single state have the ability to make this determination not only for their own citizens, but for the rest of the nation?” The fear that the Court would ultimately rule President Trump must remain on the ballot in all fifty states quickly prompted the creation of an entirely new standard by which to judge the case and a new framework for Democrats to respond to any ruling they didn’t like. Suddenly, the Court was not supposed to rule on the applicability of the 14th Amendment, namely the trifecta noted above. They were instead supposed to rule on the former President himself and decide whether or not he was an insurrectionist. The new meme, as covered by The Atlantic, was that a narrow ruling on “procedural grounds” would not prevent Democrats from mounting an insurrection of their own in the House of Representatives, should President Trump prevail in November. The idea was first raised by Jason Murray, the attorney representing Colorado in the Supreme Court case concerning the 14th amendment. “If this Court concludes that Colorado did not have the authority to exclude President Trump from the presidential ballot on procedural grounds, I think it could come back with a vengeance because, ultimately, members of Congress would have to make the determination after a presidential election if President Trump wins about whether or not he is disqualified from office and whether to count votes cast for him under the Electoral Count Reform Act,” Mr. Murray said. In The Atlantic’s view, “Murray and other legal scholars say that, absent clear guidance from the Supreme Court, a Trump win could lead to a constitutional crisis in Congress. Democrats would have to choose between confirming a winner many of them believe is ineligible and defying the will of voters who elected him.” Their reporting also claimed that “senior House Democrats would not commit to certifying a Trump win, saying they would do so only if the Supreme Court affirms his eligibility.” This, however, was always absurd: President Trump was not on trial, the Supreme Court doesn’t conduct trials in any event, only rules on decisions and convictions in lower courts, and the idea that they were ever going to rule on President Trump directly can only be seen as a pathetic attempt to rewrite the disqualifications rules in their favor if the decision didn’t go the other way. The fact that the former President asserted his innocence in the filing was meaningless. Further, we know this without a doubt because it is what the Constitution demands: If President Trump has due process, which he surely does, he is innocent until proven otherwise. There need be no affirmative ruling by the Supreme Court to insist he is innocent, nor should there be as that’s not how any of this works.
Of course, how the courts and democracy in general works has never been their concern. Instead, President Trump’s detractors needed something to cling to should the Court rule against them as was always likely, and sure enough the stunning 9-0 ruling in the former President’s favor was met immediately with claims that this was not a clear win for Trump by any means. Neal Katyal, a Supreme Court lawyer, insisted that was the case and demanded the Court rule the way he preferred on the immunity case before it next month. On X, he opined, “It’s a win for Trump. At the same time, remember that the Supreme Court’s decision today did not do what Donald Trump had asked: clear him of insurrection. The Colorado court found that he so was, and Trump had an entire section of his SCOTUS brief arguing he was peaceful on 1/6. The Court didn’t do what he asked; it did not clear him. And the act’s decision leaves space for his criminal trial about Jan 6 to proceed, should the Court dispose of the other Trump immunity case quickly in the Spring (as it can and must). The Court took 25 days to render this decision. Anything longer in the immunity case would be deeply inconsistent with what it did here.” Steve Vladeck claimed the 9-0 ruling was “narrow” because the Justice’s disagreed on the precise enforcement mechanism, as if that changed the unanimous outcome. “It’s 9-0 that Colorado can’t disqualify Trump. But only five justices hold that the *only* way to enforce Section 3 against federal officeholders/officeseekers is through a statute enacted by Congress. The other four wouldn’t (and don’t) reach that question. So 5-4 on breadth.” Somehow, the issue of whether states could, in principle though in practice much differently than Colorado, enforce the 14th Amendment on their own had become a “Big distinction.” “Just to emphasize: The narrowest ruling would’ve been that *states* can’t disqualify *presidential candidates* under Section 3. The actual holding is that the *only* way to disqualify *any* candidate for federal office is through a statute enacted by Congress. Big distinction.” If he were being honest, he should’ve added “without a difference” given the 9-0 ruling that Colorado couldn’t remove him from the ballot meant even the dissenting Justices would require a much stricter standard than was followed there, even if they did not actually define the standard, we know the one used in Colorado did not pass muster with any of the Justices.
Needless to say, some were even less generous in their reactions, claiming that the Supreme Court got the obvious, unanimous decision entirely wrong, was actively interfering in the election, or perhaps should be disbanded entirely. Manisha Sinha, writing for CNN, claimed the decision was tantamount to those in the late 1800s which enabled segregation and Jim Crow, “In ruling that Trump should stay on the presidential ballot of 2024, the Supreme Court has delivered a mortal blow to Section 3 that basically eviscerates its power altogether. In doing so, the court is living up to its sorry 19th-century history of emasculating Reconstruction federal civil rights laws and constitutional amendments.” Even at first glance, this is a rather backwards way of considering a decision that ultimately supports federal power given the 5-4 portion maintained that only the House of Representatives, not the states, can enforce the 14th Amendment. Somehow, by not empowering states to disqualify candidates on their own, as they were effectively prevented from administering Civil Rights laws on their own, the Supreme Court was denying states any ability to enforce the Constitution, period. The backwards logic continued when Ms. Sinha claimed, “The Colorado Supreme Court did not enforce that disqualification; it simply upheld Section 3 of the 14th Amendment,” suggesting that a candidate need not be affirmatively disqualified but is rather negatively not disqualified in a bizarre twist of logic that also happens to upend due process, which I guess should be considered as usual by this point. Either way, “the justices have also left us defenseless against future insurrection attempts,” save of course by actually charging the crime and getting a conviction. At the same time, we should give Ms. Sinha credit for at least attempting to make an argument. Many accused the Court – which was responding to a naked, brazen attempt to interfere with an election – of interfering with the election. Ken Dillian on NBC claimed, “”This is another example among many that are playing out right now of the Supreme Court playing a huge role in American elections, and it’s not necessarily the case that that’s a good thing for the Supreme Court. The approval levels of the court poll at historic lows … It’s going to be seen by many people as the court essentially interfering in some sense in the election, and so this is all sort of playing out here in terms of how we assess the Supreme Court and its legacy.” MSNBC’s Donna F. Edwards insisted, “Not since Bush v. Gore have we seen a Court that’s had this many opportunities to interfere in the election.” Disgraced MSNBC host Keith Olbermann claimed “The Supreme Court has betrayed democracy. Its members including Jackson, Kagan and Sotomayor have proved themselves inept at reading comprehension. And collectively the ‘court’ has shown itself to be corrupt and illegitimate. It must be dissolved.” Perhaps no one was more poignantly resigned than George Conway, who claimed everyone knew the outcome was inevitable all along. “It came from an understanding that it was too much to expect this Court, at this time, in this political context, to apply the Constitution the way the Court normally should: by dispassionately looking at the constitutional text, and the historical context, and letting the chips fall where they may.”
If this is what accompanied an obvious 9-0 decision that brought conservative and progressive justices together, anyone who thinks the election in November will be conducted in anything resembling the usual manner isn’t paying attention. We’re in a brave new world of completely backwards reasoning, and it will not stop so long as President Trump is involved. It will not be long before someone insists we need to cancel the election entirely to save democracy.
Confessions of a Conservative Atheist 