After showing a remarkable lack of interest in the underlying facts, the U.S. Supreme Court has kept an adjudicated insurrectionist — who is, by definition, unfit to be president — on the ballot.
Apart from Justice Ketanji Brown Jackson, during oral argument, the Court asked almost no questions about Colorado’s predicate finding that Donald Trump engaged in insurrection: That on January 6, 2021, following two months of frenzied attempts to overturn his election loss, Trump summoned supporters to the capitol, goaded them with false and incendiary claims that their votes had been “stolen,” then prodded the mob to storm Congress.
Just three weeks after argument, the Court ruled that states cannot remove insurrectionists from the presidential ballot under Section 3 of the 14th Amendment.
Apart from the substance of the ruling, the partisanship of the court’s timing is glaring: It took them only three weeks to restore an insurrectionist to the ballot, but they need seven months to rule that presidents can’t assassinate their rivals.
The Court keeps an adjudicated insurrectionist on the ballot
Section 3 of the 14th Amendment is short, does not lack clarity, and is not ambiguous. It bars anyone from federal office who “engaged in insurrection” after they swore an oath to support the Constitution. The opening words — “No person shall…” — make the ban mandatory, not optional.
The U.S. Supreme Court could have reversed or limited the Colorado Supreme Court’s determination that Trump had engaged in insurrection, but it didn’t. That ruling remains legally intact.
Avoiding the shameful details of Jan. 6, the alleged originalists on the Court got creative instead. Despite agreeing that Section 3 applies to candidates for president, and — apparently agreeing that Trump engaged in insurrection — the high court ruled nonetheless that states could not enforce the insurrectionist ban without a separate act of Congress, lest “chaos” ensue in federal elections.
It’s hard to appreciate how years of election chaos from an insurrectionist trying to overturn an election are preferable to a state supreme court — or the U.S. Supreme Court — enforcing the plain terms of the Constitution.
Congress, Court point at each other
The court’s 5-4 majority decided that Section 3 isn’t self-executing, meaning it has no force or effect in the absence of additional congressional action. Building an off-ramp to keep Trump on the ballot, “conservative” jurists crafted a new legislative hurdle that has never been applied to the 14th Amendment.
Although Section 5 of the same amendment states, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” that language does not give Congress the sole or exclusive right to act, it does not bar state or Supreme Court enforcement of the 14th Amendment (or any other amendment), and it does not declare itself null and void, “unless and until Congress says otherwise.”
The Court making up language to defer to Congress is even more farcical considering that GOP Congressional leaders, for their part, left Trump’s insurrection up to the courts. Despite initially agreeing that Trump orchestrated the Jan. 6 capitol attack, GOP leadership voted against his second impeachment, claiming it should fall to the courts, not Congress, to hold him accountable.
Specious timing
The speed with which the Court restored Trump to the Colorado ballot — just three weeks after oral argument — delivered Trump an immediate boost the day before Super Tuesday, when voters in 15 states were headed to the polls.
While it’s comforting to be reminded that the Supreme Court can move with alacrity when it wants to — such as when it decided the 2020 election for George W. Bush in a matter of days — the quick timing on Trump’s insurrection stands in stark contrast to the presidential immunity case, on which SCOTUS has been deliberately dragging its feet for months.
Special counsel Jack Smith asked the Supreme Court to decide Trump’s immunity claims in December. They refused, waiting instead for the Court of Appeals to weigh in. The D.C. Circuit weighed in with a unanimous decision rejecting Trump’s immunity claim, issued the first week in February. The Supreme Court waited nearly a month before deciding it would hear Trump’s immunity claim for itself, after all, and set the immunity hearing for late April.
A late April hearing on a case that has already been briefed to the hilt will likely result in a late June opinion; that opinion could again return the case to the appeals court to address any number of inquiries, which would prompt Trump to seek another interlocutory appeal, just to push the trial date past the November 5 election. As it stands, in rejecting Smith’s December request, and delaying the ruling until late June, likely pushing the trial start to late October, the Court gave Trump’s campaign the key gift of seven months’ delay.
Although no one expects the Court to countenance Trump’s claim that presidents can assassinate political rivals with impunity, the delay all but guarantees that Trump will not stand trial for his attempt to overturn the 2020 election while it matters to voters.
Their decision to slow walk the immunity ruling is a gift of time, not substance, but it will have the same effect. Even a Court this nakedly partisan cannot grant a president complete criminal immunity, but their careful delay all but assures that, for Trump, the question will become irrelevant.
Sabrina Haake is a Chicago attorney and Gary resident. She writes the Substack newsletter The Haake Take.
