Did SCOTUS just summarily amend the Constitution, via 5 votes?
Recall my December 20, 2023 post.
OK
Article V:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Whether any of us agree/disagree with SCOTUS decisions pursuant to any specific case, their primus inter pares authority with respect to statutory constitutional evaluation is beyond any rational dispute. I would think.
But, what of this case? Do we properly need a clarifying additional Amendment, rather than de facto "amendment by 'footnote'?" Pertaining to both Amendment 14, Section 3 (which now seems effectively nullified, politically), and to Article V itself?
This decision has been reflexively touted as a "unifying, dispositive 9-0 Slam-Dunk."
Hardly. Not so fast.
The justices did not want to throw Trump off the ballot, and so they didn’t.Yikes. Read all of it.
It was always unlikely that the Supreme Court, with its right-wing majority, would uphold Colorado’s ruling throwing Donald Trump off the ballot merely because he tried to execute a coup after losing the 2020 election. As the unanimous per curiam ruling issued Monday overturning Colorado’s decision suggests, a Court made up of nine liberal justices may not have done so either.
That’s because sustaining the Fourteenth Amendment’s bar on insurrectionists holding office as written would put the justices in the difficult political position of looking like they were deciding an election. Such a thing could undermine popular support for the Court as an institution. It might prompt Congress to act to constrain the Court’s power. It could have led to a massive and potentially violent backlash from Trump supporters.
The unanimous part of the decision found that states do not have the authority to disqualify candidates for federal office, the least absurd and damaging rationale for avoiding disqualification, one that sidestepped rewriting history or contorting the English language on Trump’s behalf. The justices did not declare that January 6 was not an insurrection or that Trump did not engage in such, as elite pundits have twisted themselves into pretzels to argue in these past months; they did not decide that the president is not an officer “under” or “of” the United States, as acolytes of the conservative legal movement have urged.
Instead, the justices argued that allowing state enforcement would lead to anarchy that could “dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.” Referring to the potential problems that could be caused by individual state enforcement of the prohibition, the justices write that “nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.”
Not that this should have mattered to the Court’s originalists, whose commitment to that doctrine supposedly prevents them from deciding cases on the basis of their personal preferences rather than the law itself. But in this case, as the conservative legal scholars William Baude and Michael Stokes Paulsen wrote last year, originalists’ preferred interpretive prisms—the plain text of the amendment, how it was understood at the time, the intent of its framers—would have led to Trump being disqualified, a result that, apparently, none of the justices liked.
Every one of them decided, as transparently as possible in this case, that the text of the Constitution would have forced them to do something they did not want to do or did not think was a good idea, and so they would not do it. The justices did not want to throw Trump off the ballot, and so they didn’t. Not only that, but in order to head off the unlikely scenario of Congress trying to disqualify Trump after the election, they said that Congress must specifically disqualify individual insurrectionists, despite such a requirement having no basis in the text. Even if you agree with the majority that this was a wise decision politically, it cannot be justified as an “originalist” one; it was invented out of whole cloth—and in doing so, the justices basically nullified the section entirely. As the three Democratic-appointed justices note, “Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that enforcement must operate.”
The thing to understand about this case is that, with the exception of the ruling’s partial unanimity, it is little different from many other recent big cases in which “originalism” supposedly carried the day, whether the topic was abortion rights, guns, voting rights, or something else. The conservative justices have a majority, and they may work their will. But the originalism they purport to adhere to is nothing more than a framework for reaching their preferred result in any particular circumstance. They felt that a plain reading of Section 3 of the Fourteenth Amendment would lead to chaotic or adverse outcomes, so they not only ignored it but also essentially amended the Constitution by fiat…
14.3 has always bothered me, in light of the lack of any detail going to what criteria we are to use to dispositively label someone an "insurrectionist" subsequently to be disqualified from federal office eligibility. Nonetheless, the rank expedient majority hypocrisy comprising this decision is no cause for jurisprudential Warm Fuzzies either.
Alito's Gadfly Serwer concludes:
This case reveals originalism as practiced by the justices for the fraud it actually is: a framework for justifying the results that the jurists handpicked by the conservative legal movement wish to reach. Americans should keep that in mind the next time the justices invoke originalism to impose their austere, selective vision of liberty on a public they insist must remain gratefully silent.Sammy gonna have an aneurism. Might we soon see another irascible WATB OpEd?
UPDATE
DON’T BE FOOLED BY THE HEADLINES heralding as “unanimous” today’s Supreme Court decision striking down the Colorado ballot ineligibility ruling. All nine justices did agree that no state, including Colorado, has the constitutional authority to put Section 3 of the Fourteenth Amendment to work. All nine justices thus effectively agreed that the horrors of January 6th are not bad enough to keep Donald Trump from running again this year. Had that been all the majority held, the decision might in fact have been unanimous. But the majority went further, making it virtually impossible that Section 3 will ever have a role in federal elections moving forward.
The Court did not have to do this. And four of the justices—all of the women on the Court—made clear that they would have preferred the Court not do it…
RANDOM NOTE
I suppose it ought be noted that the 14th amendment has a Section 5:
Sec 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Is that enough to justify the contentious concurrences? Note that it doesn’t say “shall have the sole power.”
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