Chief Justice John Roberts Squanders a Golden Opportunity
A Needless Majority Opinion in Trump v. Andersen That Only Further Damages the Court and Demonstrates his Lack of Leadership
On Monday, the United States Supreme Court handed down its decision in Trump v. Anderson, reversing the Colorado Supreme Court’s decision to bar Donald Trump from running for President. In an unsigned 13 page opinion, the Court held that individual states cannot enforce Section 3 of the 14th Amendment on their own.1
The decision is rather unsurprising.2 The decision by the Colorado Supreme Court to remove Trump from the ballot was unprecedented. And at oral arguments, it was fairly clear that none of the Justices agreed with the reasoning of the Colorado court.
While all the Justices agreed that Trump should be restored to the Presidential ballot, there was still bitter division on the Court.
That’s because a bare majority of the Court further held that Section 3 of the 14th Amendment required enabling federal legislation to be enforced. This part of the decision was not joined by Justice Amy Coney Barrett and was the cause of sharp disagreement by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, even as they concurred in the judgment.
My own personal view is that the Court arrived at the right conclusion but for the wrong reasons. My position, which was not adopted by the Court, is that Section 3 of the 14th Amendment applies to the office of the Presidency and does not require enabling legislation as long as there is a federal crime of insurrection.
If a candidate for office has been convicted of the federal crime of insurrection and exhausted all their available appeals, they can (and should) be removed from the ballot unless Congress has voted by a 2/3rds margin to restore their right to office.
While I agree that the events at the Capitol on January 6, 2021 constituted an insurrection and that Donald Trump is fully criminally culpable, having joined the Insurrection in process, Donald Trump has not been convicted of the federal crime of insurrection. He’s not even been charged with that crime. Therefore, he cannot be prohibited from running for President under this Clause.
By analogy, let’s imagine a 6th Section of the 14th Amendment prohibited murderers from running for President.
O.J. Simpson files paperwork to run for President and qualifies for the ballot. Can O.J. Simpson be removed from the ballot?
No.
While I’m pretty certain O.J. Simpson murdered Nicole Brown Simpson and Ron Goldman Jr., he was tried for the crime of murder and a jury acquitted him. And that’s that.
Without additional specific language, as a matter of judicial interpretation, that is the necessary outcome to protect the individual right to candidacy.
The interpretation of the Constitution that Trump can still run for President will undoubtedly upset some folks. I’ve generated a lot of anger from fellow Democrats for disagreeing with some popular legal takes that are detrimental against Donald Trump.
The reason I will take these controversial views is because legal interpretations regarding Trump do not just impact Trump, they impact everybody. If something Trump does constitutes a crime or can disqualify him from the ballot, those same things can criminalize the acts of others or disqualify others from the ballot.
There are serious issues with a court or elections official being able to have a court remove a duly qualified candidate for President from the ballot. Such a precedent would not just apply to Trump but to all candidates for federal office.
While it’s easy to be distracted by (more than justifiable) hatred and utter contempt for Trump, it’s dangerous to create legal precedents that could blow up our entire system or jeopardize our own individual rights and liberties.
Fortunately, the three Democratic appointed United States Supreme Court Justices are of the same mind. Their fealty is to the Constitution, not MSNBC commentators. And they interpreted the Constitution in an impartial and unbiased manner.
As the Justices wrote in their joint concurrence in the judgment, “Allowing Colorado to [remove Trump from the ballot under Section 3 of the Fourteenth Amendment] would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.”
As they concluded, “Section 3 marked the first time the Constitution placed substantive limits on a State’s authority to choose its own officials. Given that context, it would defy logic for Section 3 to give States new powers to determine who may hold the Presidency.”
Fair enough. I respect their decision and accept their conclusion.
However, Chief Justice John Roberts apparently did not.
The United States Supreme Court’s reputation and approval ratings are at historic lows with more Americans than ever distrustful of the institution. Most Americans now see a hyper-politicized Court where the political make up of the Court, rather than the law and the facts, determines the outcomes of cases.
It’s damaging not just for the United States Supreme Court but for the entire judiciary and our legal system. If the American public believes that outcomes are pre-ordained, people will cease using the legal system to resolve their personal disputes and courts will not be able to resolve disputes that arise out of the political process.
The Court was in a tough position in Trump v. Anderson. Most Americans agree with the Colorado Supreme Court’s decision to remove Trump from the ballot, thus requiring them to issue a constitutional ruling defying a majority of Americans.3
But the truth is, large segments of the American public would have rejected this decision regardless of the outcome and would see it as a partisan decision.
For many on the left (actually, many who just dislike Trump), this outcome is just another example of Donald Trump getting away with not following the rules and being able to weasel out of it. Once more, he’s been placed above the law that everyone else required to follow.
Worse, it’s yet another example of the Court showing it’s not a fair or neutral arbiter of law, but instead a politicized hyper-partisan Republican Supreme Court that doesn’t care about following precedent but instead is devoted to advancing Trump, the Republican Party, and conservative causes.
But imagine if the Court had ruled the other way.
For many on the right, removing Trump from the ballot would have been an act of ruling class elites taking their champion off the ballot, depriving them of their right to vote for the candidate of their choice in the Presidential race. To them, Trump is not an insurrectionist but merely the penultimate victim of cancel culture, removed from the Presidential ballot because he says truthful things that sensitive people dislike.
Moreover, it’s a sign to them that political remedies may be pointless to pursue because the elites will always find a way to manipulate the electoral process to negate the will of the people. In light of the fact that we witnessed Trump supporters commit acts of political violence on January 6th, 2021, removing Trump from the ballot would have only encouraged more supporters to engage in such acts.
With this backdrop, the Court needed to make clear that it was not opining on who they thought should be President but instead was simply rendering a decision based upon their best interpretation of the United States Constitution.
A Court can always write some form of this statement in its opinion. However, those words are often not enough to persuade large swaths of the public. The actions of the Court have to say as much.
That can be difficult to do when there’s a controversial issue and Justices feel passionately about their individual interpretation of the law. However, it is less difficult when there is broad consensus by the Court.
How could Chief Justice Roberts have led in this moment?
Although described as a first among equals, the Chief Justice of the United States Supreme Court is responsible for assigning the author of a majority opinion of the Court. The exception is if the Chief Justice dissents. In that instance, the most senior Justice in the majority assigns the opinion.
Regardless of who wrote the opinion (we don’t know who because they were too cowardly to put their name on it), as he was part of the majority opinion, Chief Justice Roberts assigned whichever Justice authored it. Additionally, as only five Justices agreed to the notion that Section 3 of the Fourteenth Amendment required enabling legislation, he provided a key swing vote.
Did the Court need to address the issue of federal enabling legislation? No. It wasn’t at issue in the case. As Justice Amy Coney Barrett, a Trump appointee, wrote:
I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that. This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.
Because there was unanimous agreement as to the outcome that Trump had to be on the ballot, Chief Justice Roberts could have picked any of the three currently serving Democratic appointments to write a unanimous opinion reversing the Colorado Supreme Court and holding that Section 3 of the Fourteenth Amendment did not prohibit Trump from running for President.
Had he been a true leader, Chief Justice Roberts would have set aside his views on whether Congressional legislation was needed for enforcement. More importantly, he would have assigned Justice Brown Jackson to write the opinion for the Court.
Rightly or wrongly, she is perceived by the public as progressive. She’s not only a Democratic appointment but an appointment of President Joe Biden, the man who defeated Donald Trump and will face him again this year.
Had Justice Brown Jackson authored the opinion, the Court would have demonstrated to the public that regardless of the current political acrimony, the courts will remain a fair and impartial arbiter of the law, unbiased towards any political outcome, devoted instead to the law. The Court’s reputation would have been boosted. And while many Americans would have been upset by the decision, most would have accepted it.
Some in the media would have trashed the opinion. Some prominent leftwing commentators wrote longwinded screeds against Justices Sotomayor, Kagan, and Brown Jackson simply for agreeing that Trump should be on the ballot.
However, had Justice Brown Jackson authored the opinion of the Court, their rants would be far less persuasive. While any number of LA Times columnists and MSNBC commentators would have declared Justice Brown Jackson to be the leading face of white supremacy, Christian Nationalism, and preserving the heteronormativity of the patriarchy, most folks would have tuned out such ad hominem attacks.
Notwithstanding having this option, Chief Justice Roberts chose differently. And his choice is to the detriment of the Court and the country.
What’s the ultimate result of the outcome of Trump v. Anderson? The country remains divided, the Court continues to look like a political actor to the public, and the American public continues to lose its faith in our judiciary and legal system.
This did not have to be the outcome. Unfortunately, Chief Justice Roberts made it that way. In the process, he squandered a golden opportunity and failed to lead at the very moment the country desperately needed him to.
https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf
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https://twitter.com/PpollingNumbers/status/1740150679321354359
; https://thehill.com/homenews/campaign/4370878-over-half-americans-approve-colorado-ruling-barring-trump-states-ballot/