We are not surprised that three of the justices on the Supreme Court who favor an evolving view of the Constitution would refuse to enforce a little-known provision of the 14th Amendment that has never before been employed during a presidential election.
While we disagree with their conclusion, the justices are right that there is no precedent and that allowing a state to banish a bad actor from the ballot just before the 2024 primary is an extreme action that could violate competing portions of the Constitution requiring that federal officers are responsive to all the people of America through a coordinated election process.
We are dismayed, however, that Supreme Court Justices John Roberts, Neil Gorsuch, Samuel Alito, Clarence Thomas, Brett Kavanaugh, and to a lesser extent Amy Coney Barrett, would so quickly and with so little explanation abandon their literal adherence to the plain words of the Constitution — a legal world-view known as “originalism.”
Not only did the originalists use historical context to decide what the 14th Amendment says, but they also undermined the entire amendment with a sweeping and far-reaching ruling that Coney Barrett criticized.
These justices stripped pregnant women of their rights without even acknowledging that women in states with abortion bans would die of sepsis while waiting for a fetal heart to stop. And yet, the justices spent a few sad paragraphs at the end of their ruling in Trump v. Anderson lamenting the harm that would occur were former President Donald Trump to be kicked off the ballot in Colorado.
“Nothing in the Constitution requires that we endure such chaos — arriving at any time or different times, up to and perhaps beyond the Inauguration,” write all of the conservative justices with the exception of Barrett, who wrote a short separate opinion. These men cry tears for an orderly election but couldn’t spare a moment for pregnant women suffering life-threatening health conditions.
Gorsuch, Alito and Thomas long ago swore it should not matter to good justices what bad outcomes might result from enforcing the Constitution as written, as long as they did not waver from the plain language. Roberts and Kavanaugh have never claimed to be true originalists but do lean in that direction.
Just how clear is the language of the Constitution when it comes to elected officials who have taken an oath of office and then supported a violent uprising against that very sacred document?
Amendment 14 Section 3 could not be clearer: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion.”
Given Trump’s violent rhetoric, his aggressive orchestration of alternative electors following his clear loss in 2020 to President Joe Biden, and his subsequent efforts to prevent Congress from certifying the results as required in the Constitution, it is clear that Trump cannot “hold any office … under the United States.”
Rather than enforce this inconvenient truth in the Constitution, the justices have ruled that states cannot be the ones enforcing the 14th Amendment. They go so far as to rule that no one can enforce the 14th Amendment without legislation or other acts of Congress.
“This can hardly come as a surprise,” the majority quips as they shoot down the Colorado Supreme Court’s ruling that Trump’s actions following the November 2020 election have rendered him unqualified for federal office.
Indeed, it is a surprise that states cannot enforce the 14th Amendment.
Who do these justices think brought the case Brown v. Board of Education to their bench in 1954? It was not federal prosecutors, using federal legislation to enforce desegregation of schools in the south. It was citizens, children to be specific, seeking “equal protection” under the 14th Amendment. One of the cases went to state courts, others through federal courts, but never did the Supreme Court deny a case because the state’s courts had no authority to enforce the 14th Amendment. In fact, in some states and some small towns, the wait would have been long for an end to segregation in schools if the Supreme Court had required federal action on the issue.
The court ruled in Brown: “Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”
In a similar fashion, earnest Coloradans who were convinced that Trump’s insurrection attempt disqualified him from office sought redress in Colorado courts to enforce the 14th Amendment. We wrote in November that these Coloradans obviously had standing to bring this case and that the courts were the appropriate place to litigate whether Trump’s actions met the definition of “insurrection.”
The concurring opinion by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson made this exact argument while they dissented to the court’s reasoning: “Similarly, nothing else in the rest of the Fourteenth Amendment supports the majority’s view. Section 5 gives Congress the ‘power to enforce [the Amendment] by appropriate legislation.’ Remedial legislation of any kind, however, is not required. All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) ‘are self-executing,’ meaning that they do not depend on legislation.”
Sotomayor, Kagan and Jackson are arguing for judicial restraint. This isn’t the first time, nor the last time we fear, that the rogue conservative majority on the court will rule as broadly as they possibly can in pursuit of their desired outcome.
That four justices ruled narrowly against employing a novel legal argument on a state-by-state basis to keep an insurrectionist from running for president is being considered a win by Trump’s supporters.
That five justices ruled that the 14th Amendment cannot be enforced by states without federal legislation is a loss for America, a loss for liberty and yet another sign that this court is spiraling out of control with no leadership, no discipline and a clear uptick in partisanship.
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