For the second time in days, the Supreme Court has made a new Trump presidency possible

(Steve Helber/Associated Press)

For the second time in days, the Supreme Court has made a new Trump presidency possible

Opinion piece, Elections 2024

Harry Litman

March 4, 2024

The Supreme Court ruled Monday that a single state like Colorado cannot bar Donald Trump from running for office 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 courts were strongly inclined to put Trump back on the ballot


oral argument in the case last month, and indeed the justices unanimously overturned the Colorado Supreme Court. The per curiam, or “by the court,” opinion further emphasized that the court spoke with one voice.

But the justices were far from unanimous on the reason for the reversal. There was a clear 5-4 split with two contests, one by liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson and the other by Justice Amy Coney Barrett.

The narrow, right-wing majority within the unanimous decision believed that congressional legislation is necessary to enforce Section 3 of the 14th Amendment, which bars elected officials who engage in rebellion from holding office again. This clearly limits the strength of the amendment in the future.

All four competing judges refrained 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 not in others. others. As the court wrote: Nothing in the Constitution requires that we endure such chaos.

The opinion signed by the three democratically appointed judges, although framed as a concurrence of votes, was quite sharp in its disagreements with the majority. Most pointedly, they cited Justice Stephen G. Breyer’s dissent in Bush v. Gore, the 2000 view that is still a bte noire for liberals: what the Court is doing today, the Court should have left undone.

Barrett also believed that her five fellow conservatives had overstepped their bounds. But she sounded a conciliatory tone, writing that now is not the time to amplify the disagreement with stridency.

So while the court was able to reach an agreement on the outcome, which was certainly a priority for Chief Justice John G. Roberts Jr., the political divisions were clearly visible just beneath the surface. It wasn’t a kumbaya moment.

In cases of this magnitude and with these political stakes, the court is better off if it is unanimous or nearly unanimous. Kagan and Jackson, who seemed to lean toward a reversal during oral arguments, and even Sotomayor, whose inclination was less clear, thus acted in the service of the court’s institutional interests. Despite their fundamental disagreements with the majority, their agreement allowed the court to decide with sentiment

good paragraph noting that all nine members of the Court agree with this result. They were good soldiers and team players, who may be able to foster good will with Roberts in the future.

With rocky conservatives on the right of the chief justices, there is obviously little prospect of similar goodwill. The court’s law has fallen in line on ideologically divisive issues, and there is no reason to expect that to change.

Following last week’s decision to review the D.C. Circuit Court of Appeals’ Jan. 6 rejection of Trump’s claim of immunity from prosecution, today’s landmark ruling marks a second substantial victory for the president who appointed three of the judges.

Some observers speculated that the justices would consider the two Trump cases, on immunity and the 14th Amendment, as a pair they would split. A ruling in favor of Trump on the Colorado case and against him on the January 6 prosecution would convey a kind of neutrality.

Although it is difficult to see it that way now. Not that the court will rule that Trump is immune from the charges arising from his treasonous efforts to overturn the outcome of the 2020 election. The best he can hope for is a temporary detention in court and eventual loss of the merits of his immunity claim.

But the court gave Trump the priceless gift of time last week by suspending proceedings in Judge Tanya Chutkan’s U.S. District Court for at least several months, casting serious doubt on whether the case can be heard before the election.

If polls are to be believed, a criminal conviction would likely convince a significant number of voters to abandon Trump. That means the court’s decision to join the fray and delay the case, when it could have allowed the DC Circuit’s thorough, bipartisan opinion to stand, was likely the most important support it gave to Trump’s campaign could have given.

Moreover, in the immunity case the court acted with some speed, but not nearly as quickly as in other urgent cases. That includes the decision it made Monday, rushing to clarify the electoral landscape just in time for Colorado and other states to vote on Super Tuesday.

There is much room for debate as to why the court acted as it did in each case. But there is no doubt about the impact. Should the country wake up to the grim prospect of a second Trump presidency on November 6, history will show that the Supreme Court has played a crucial role.

Harry Litman is the host of the

Talking Feds Podcast




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