There is one path forward that can salvage the court's standing.
The US Supreme Court is sinking to unusual depths of corruption and illegitimacy. Bush v. Gore was a step down in its ability to manage the rules of our political and legal system, where it made a hasty and, it claimed, one-time-only carve-out for its favored candidate, leading to almost a decade of tragically bad policy and poor government. Then came Citizens United, another step downward, opening firehoses of secret money from the wealthy, using the fig leaf of "free speech" to cover the corruption of politics with money. Then came the overturning of Roe, deeming women unworthy of rights that are far more basic and intimate than those enumerated in the Bill of Rights. And most recently have come the drumbeat of reports of corruption among the right-wing justices, who appear to regard themselves as too dignified to abide by the laws and norms they hold others to.
Now it is faced with a case that tests the very core of the court's abitlity to do its job. What does the constitution mean? Does the fourteenth amendment mean what it says, and if so, should it be enforced? A great deal of commentary suggests, probably correctly, that this court is desperately looking for a way out of this legal conundrum that allows it to do nothing and avoid overturning any apple carts. That would not, however, be a wise course.
To recap, the Colorado case was brought by voters who sought to bar Donald Trump from the Colorado primary and general election ballots, due to his participation in the insurrection of January 6, 2021. The fourteenth amendment to the federal constitution bars such participants from federal and state offices. The Colorado Supreme Court ultimately agreed, sending the case to the US Supreme Court. The congressional report on the January 6 events makes the record of those events quite clear. It uses the word "insurrection" several times, as do many of its sources, and it is crystal clear about the participation by and culpability of Donald Trump in those events.
The question is really about how the Constitutional provision should be brought into execution, being worded without a lot of explicit legal structure. One thing it does say is that congress can relieve its prohibition in individual cases by two-thirds votes of each house. But it leaves unsaid who should adjudicate the question of fitness for office, as is also the case for the more basic qualifications such as age and citizenship. Trump had previously, and ironically, dabbled in these same legal waters by casting doubt on the citizenship of Barack Obama. But since no one with half a brain took him seriously, the issue never entered the legal sphere.
Well, the worst course would be to let the clear language of the constitution lay inert and find some technicality by which to do nothing. What I would suggest instead is that the court recognize that there needs to be a national adjudicating power to decide this question in the case of candidates for national office (and indeed for any office whose qualifications are mentioned in the constitution). And that power should be itself, the US Supreme Court. The court might invite the legislative branch to provide more regular methods of fact-finding, (or even a clarifying amendment to the constitution), but given the constitutional clear intent, history, and logic, (not to mention the general Article III clauses putting all questions arising from the constitution in its hands), the court should take upon itself the power to say that the buck stops at its door. And naturally, in consequence, that Trump merits disqualification, on the facts of the January 6 events as found by the lower courts, and on his position as an officer, indeed the paramount officer, of the United States.
This solution would neatly take over from the states the responsibility of saying that any national candidate meets or does not meet the various qualifications set forth in the constitution. Such cases could begin in state courts, as this one did, but would need to go to the US Supreme Court for final decision. This solution would hold Trump to account for his actions, a principle that Republicans have, at least traditionally, cherished. This solution would also go some way to removing the stain of the Bush v Gore decision, and establish a new and clear element of constitutional jurisprudence, in setting forth who adjudicates the qualifications of national political candidates. In fact, this function can be tied to the practice of having the chief justice of the United States administer the oath of office to the incoming president. It would be proper for the court to be the institution that decides on the basic fitness tests, and thus who in general may take the oath, while the people decide the political outcome of the election, among fit candidates.
I am no legal scholar, but the merits of this solution seem pretty clear. On an earlier occasion, the court summarily took on the task of determining the constitutionality of laws. This role was not explicitly set out in the text, but was a logical consequence of the structure that the constitution set up. Here likewise, the logic of the constitution indicates strongly that the final word on the fitness of candidates for national office must rest with, not the voters, not the states, and not the legislative or, heaven forbid, the executive branch, but with the federal judicial branch, of which the US Supreme Court is the head.
An alternative, and perhaps more likely, solution, is for this court to state all the principles above, but then hold that in its judgement, Donald Trump is fit for office after all. Maybe it will deem the insurrection just a little insurrection, and not the kind of big insurrection that would turn a jurist's head (despite the over thousand charges filed, and hundreds of federal convictions so far). Or maybe it will deem Trump insufficiently involved in the insurrection to merit disqualification. What it can not do is deem him not an officer of the federal government- that would be beyond belief. The pusilanimous, partisan sophistry of this alternative would not go over well, needless to say. Many would ask whether Clarence Thomas, himself virtually a participant in the insurrection at one remove, should have recused himself. Minds would be blown, but few would be surprised, since for this court, expectations could hardly be lower. Going against its partisan grain would, on the other hand, be a signal and heartening achievement.
This second approach would at least resolve the legal questions, but at the cost of further erosion of the court's legitimacy, given that the events of January 6 are so well documented, and the constitutional peril that Trump poses so obvious. For the whole point of having a Supreme Court which takes on tough issues and plugs logical holes in our constitution is that it also takes some care to plug them well, and preserve our democracy in the process.
- What happens when the Supreme Court gives in to politics?
- One state, one system.
- A solar energy insurrection in Puerto Rico.
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- More on the court case- ballots vs office holding.
