The Supreme Court held Monday that a single state like Colorado cannot bar Donald Trump from running for president as an insurrectionist under the 14th Amendment. It was the second time in less than a week that the court provided a crucial boost to the former president's campaign to return to the White House.
The court's strong inclination to return Trump to the polls was clear at oral argument in the case last month, and the justices actually overturned the Colorado Supreme Court's decision unanimously. The “per curiam” or “by the court” opinion further emphasized that the court spoke with one voice.
But the justices were far from united on the justification for the revocation. There was a clear 5-4 split with two concurring, one from the liberal justices (Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson) and the other from Justice Amy Coney Barrett.
The narrow right-wing majority within the unanimous decision held that congressional legislation is needed to enforce Section 3 of the 14th Amendment, which bars elected officials who participate in the insurrection from holding public office again. This clearly restricts the force of the amendment in the future.
The four concurring justices departed from requiring a federal law to enforce Section 3. For them, it was enough that the Colorado decision would impose an inconsistent and intolerable patchwork in which a major presidential candidate appeared on the ballot in some states but did not. in others. others. As the court wrote: “Nothing in the Constitution requires us to endure such chaos.”
The opinion signed by the three Democratic-appointed justices, although presented as a concurrence, was quite marked in its differences from the majority. Most significantly, they cited Justice Stephen G. Breyer's dissent in Bush v. Gore, the 2000 opinion that remains a bête noire for liberals: “What it does today, the Court should have left undone.”
Barrett also felt that her five fellow conservatives had overstepped their bounds. But he struck a conciliatory note, writing that “this is not the time to stridently amplify disagreement.”
So while the court was able to reach an agreement on the outcome, surely a priority for Chief Justice John G. Roberts Jr., its political divisions were evident just beneath the surface. It wasn't a kumbaya moment.
In cases of this magnitude and with political risks, the court is better off when it is unanimous or almost so. Kagan and Jackson, who seemed to lean toward repeal in oral argument, and even Sotomayor, whose inclination was less clear, thus served the court's institutional interests. Despite their fundamental differences with the majority, their agreement allowed the court to conclude with a welcome paragraph that noted that “all nine members of the Court agree with that result.” They were good soldiers and team players, which may generate good will for Roberts in the future.
Of course, with conservatives to the right of the chief justice, there may be little prospect of similar goodwill. The court's right has been neck and neck on ideologically divisive issues, and there is no reason to expect that to change.
In fact, after last week's decision to review the D.C. Circuit Court of Appeals' rejection of Trump's request for immunity from prosecution by January 6, today's decisive ruling is a second substantial victory for the president. who appointed three of the judges.
Some observers speculated that the justices would view Trump's two cases, on immunity and the 14th Amendment, as a pair that they would split. Ruling for Trump in the Colorado case and against him in the Jan. 6 indictment would communicate a kind of neutrality.
Although it's hard to see it that way now. Not that the court will hold that Trump is immune from charges arising from his perfidious attempts to overturn the results of the 2020 election. The best he can hope for is a return to the lower court and an eventual loss on the merits. of his claim of immunity.
But last week, the court gave Trump the invaluable gift of time, suspending the proceedings in Judge Tanya Chutkan's U.S. District Court for at least several months, leaving serious questions about whether the case can be tried sooner. of the elections.
If polls are to be believed, a criminal conviction would likely persuade a significant number of voters to abandon Trump. That means the court's decision to enter the fray and delay the case — when it could have allowed the D.C. Circuit's comprehensive, bipartisan opinion to stand — is probably the most important help it could have provided to the Trump campaign.
Furthermore, while the court acted somewhat quickly in the immunity case, it was not as quick as in other demanding cases. That includes the one he decided on Monday, rushing to clear the electoral picture just in time for Colorado and other states to vote on Super Tuesday.
There is much room for debate about why the court acted as it did in each case. But there is no doubt about the impact. If the country wakes up on November 6 to the horrible prospect of a second Trump presidency, history will record that the Supreme Court played a critical role.
Harry Litman is the host of Podcast “Talking about federals”. @harrylitman
