There’s still reason for hope on the Supreme Court’s Trump docket.
Now that the Supreme Court’s ruling in favor of Donald Trump on the 14thAmendment disqualification is sinking in, we are able to begin putting it in perspective. Yes, Trump remains on the ballot. But something else remains as well: the multiple judicial determinations that Trump engaged in insurrection. For that and other reasons, history will take a balanced view of this landmark decision, and it is far from the home run for Trump that he proclaimed.
The court ultimately resolved the thorny issue of Trump’s place on the ballot by finding that an individual state simply did not have the authority to implement disqualification for federal office. Maintaining that it is the federal government’s prerogative to enforce Section 3 of the 14th Amendment, in this instance, always appeared to be the high court’s most likely off-ramp. The justices thought that the discordant “patchwork” that would result from all 50 states applying Section 3 of the 14thAmendment would create too much potential dissonance.
Even for those who disagree with that ruling, and we do, it was among the more reasonable off-ramps that the court could take. Thankfully the justices did not embrace some of the more outré options that had been put forth—such as saying that the president is not an “officer” of the United States and thus disqualification for insurrectionists doesn’t apply to the nation’s highest office. That absurdity would have been anathema to the Framers of the 14thAmendment. The court avoided twisting itself in that and other nonsensical readings of the Constitution’s text.
AdvertisementMoreover, all nine of the justices agreed on one additional crucial point. They refused to do what Trump begged of them—they did not exonerate him of the Colorado courts’ insurrection finding. That is significant: To this date, every fact-finder to reach the question has found that Trump was an insurrectionist—that includes two courts in Colorado (both the state’s trial court and Supreme Court) along with Maine’s secretary of state; most recently an Illinois judge; and, of course, the House Jan. 6 Committee.
Advertisement Advertisement AdvertisementThese conclusions, therefore, remain as a defining factual and legal determination of Trump’s conduct after the 2020 election. All point to one basic truth: The then-president of the United States committed insurrection in order to hold on to power. The Supreme Court said nothing to contradict this shattering fact.
AdvertisementBeyond the specific merits of the case, the choices the justices made surrounding the case may hold clues about how the Supreme Court will handle the other Trump case they face this term, on presidential immunity. The speed with which the court dispatched this 14thAmendment challenge could be an important signal. The members evidently wanted to issue their decision before Super Tuesday.
Indeed, it was not legally necessary for the court to issue this decision now, particularly in light of their ruling that Colorado could not keep Trump off its ballots. Although the Colorado Republican primary was on Tuesday, the Colorado court’s determination had been stayed pending the Supreme Court’s ruling. Thus Trump would have remained on the ballot in Colorado even if the Supreme Court had not issued its ruling until after the election. That tells us that the court is aware of the impact its decisions relating to Trump and democracy have on the country writ large and the voters.
Advertisement AdvertisementThat same principle should apply in the immunity case—namely, that Americans have a right to know if Donald Trump abused the official powers he is trying to regain. That mandates a speedy resolution of his appeal over the federal D.C. prosecution. Here, the court issued its opinion in less than a month; there is no reason the immunity decision should take any longer. Notably, if the court does resolve the appeal less than a month after oral arguments (which take place the week of April 22), our analysis indicates that the underlying trial should start before November, and the case could reach a verdict before Election Day. If, however, it waits until the end of the term to issue a ruling affirming the D.C. Circuit’s decision, then the trial can still begin in or around September. That means it can be well underway before the election (though it might not conclude until after Nov. 5).
Advertisement AdvertisementFinally, one justice’s handling of the 14thAmendment case was particularly remarkable: Justice Amy Coney Barrett’s brief two-paragraph concurrence. Barrett aligned (at least in part) with the liberals. She shared their disapproval of the majority treading further afield than was necessary by tackling constitutional and legal conundrums that weren’t required to resolve the dispute before the court.
Advertisement AdvertisementSpecifically, Barrett noted that the suit underlying the appeal did not require the Supreme Court to “address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.” However, she refrained from cataloging and analyzing her disagreements with the governing per curiam opinion; instead she spoke—with what for the Supreme Court is refreshing transparency—to the rancorous political mood and how the court can (and in her mind should) be perceived by the public.
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That combination—signaling her partial alignment with the liberals’ legal interpretation, while also strongly endorsing comity and bipartisanship in the interest of creating the appearance of uniformity in the law—is an important development. We anticipate that it may be a relevant factor in the court’s looming immunity considerations. It is certainly some evidence of her openness to avoiding the widespread public outrage that would be triggered by the court endorsing a world in which a future President Trump could hypothetically order SEAL Team Six to assassinate political opponents, as is his position in the immunity case. Time will tell whether Barrett lives up to the promise of her declaration on Monday.
In light of the court’s ruling, some may now criticize the plaintiffs for bringing this case in the first place. But if the Supreme Court ultimately counterbalances its Trump decisions by ruling against Trump on presidential immunity, the D.C. case can at least make it to trial before the election. If that baby-splitting happens, the nation will be thanking the plaintiffs.
Besides, it is never anti-democratic or wrong to seek constitutional clarity where there is a meritorious question of law at issue—however it ultimately is resolved. As we head into a year filled with enormous challenges threatening the very heart of our democracy, that is an important lesson to keep in mind—and one that should encourage us all.
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