Reading between the lines of a unanimous decision to keep former US President Donald Trump in the Colorado ballot, there are signs that the decisions the US Supreme Court is making are political rather than legal. There are also indications of resentment between the conservative and liberal justices, who see the key decisions on a series of Trump issues as Roberts Court surrendering its independence to the Trump political force.
Lingering disputes emerged in a separate concurring opinion by the three liberal members of the Court—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—regarding the extent to which the majority interpreted that only Congress could enforce Section 3 of the 14th Amendment to disqualify candidates seeking federal office. They voiced their dissent in a separate concurring opinion, expressing concerns over the implications of the decision.
"Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oath-breaking insurrectionist from becoming President," they wrote, noting how far their conservative colleagues went to help Trump beyond the decision itself. "Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision."
"Yet the majority goes further...They decide novel constitutional questions to insulate this Court and petitioner from future controversy," they wrote. "The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment," the liberal justices continued.
"In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we, therefore, concur only in the judgment," they said, adding, “By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”
In overturning the Colorado court ruling that disqualified Trump from appearing on the state's 2024 presidential primary ballot, the highest court in the country ruled that the Constitution's 14th Amendment does not grant states the authority to bar candidates for federal office who engage in insurrection against the United States.
The crux of the issue centered on Section 3 of the 14th Amendment—enacted in the wake of the Civil War—which prohibits those who took an oath to uphold the Constitution from holding office if they "have engaged in insurrection or rebellion." Based on Trump's extensively documented attempts to overturn the legitimate 2020 election results and his incitement of the January 6 attack on the Capitol, the Colorado Supreme Court disqualified him as a presidential candidate under this provision.
However, the Supreme Court unanimously concluded that Section 3 does not empower states to enforce this disqualification against candidates for federal positions like the presidency. The unsigned per curiam opinion declared that only the federal government, and not states, can potentially invoke the Constitution's Insurrection Disqualification Clause.
The court went too far, admitted Trump-appointed Justice Amy Coney Barrett who wrote: "The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” she said as she played up the unanimity of the Court and set to drown the comments of the liberal justices.
Translation: Hush the specter of no confidence that there was no political consideration even in this 9-0 decision.
But even looking back to the previous decision on granting a revision of the case on presidential immunity, political considerations taint the Court’s action. Beyond all of the legal arguments or interests of the Court, its initial failure to grant an expedited ruling on the case, as requested by the Special Counsel Jack Smith, gave Trump an initial gift of delaying final resolution so he could continue his presidential run with these issues undecided.
Any argument that the Court is only asserting its own power is mooted by the simple fact that in granting certiorari, they set a long and slow process that begins hearings on April 22.
A quick review of cases of presidential importance ruled by the Court shows just how lenient they are with Trump and what a generous deference the conservatives and Trump-appointed justices are giving him. Back when a rouge Richard Nixon took the country into a Constitutional crisis as Trump is doing almost every day now, they heard and ruled on the secret White House tapes in a quick 16 days. When a Bush v. Gore decision was needed, the Court did this in a record three days.
In this case, after having denied Smith’s request “of imperative public importance" for an expedited review by sending the case to the lower court first and then deciding to review the clear and forceful decision against Trump in that court, they were set to hear arguments a full 53 days later. Almost two months of delay in just preparing to hear the case, never mind actually ruling on it. This is a massive political gift to Trump, and the appearance of repaying him for appointing them is sure to be debated in the history books.
What is more, the real decision of the US Supreme Court that has been flying under the radar is that the American people do not deserve to know the legality of the crimes of which Trump has been accused before deciding if he should be their president again. It undermines the principles of fairness, justice, equality before the law, and the integrity of democratic institutions.
The Roberts Court has completely abandoned its obligation to be the arbiter of the law and has become one more tool of the Trump political machine, helping him become a major force, unstoppable by any court.
The question remains whether, if elected, which seems likely by the day, Trump could indeed pardon himself. With the highest Court acting as a submissive accomplice in the former president’s scheme to delay court action to avoid accountability, there is little hope they can be the ones who rule that the Constitution does not permit a president to abuse the pardon power in a self-serving manner, with flagrant disregard for accountability and betrayal of public trust.
