Yesterday, the Supreme Court ruled that Colorado acted unconstitutionally when it decided that Donald Trump could not appear on the Republican primary ballot in the state because he was guilty of insurrection and thus barred from holding federal office under the Fourteenth Amendment. States, the court said, cannot decide who is barred from holding office under the insurrection clause: only the federal government can. The decision - which came just a day before the primary - was expected. We also shouldn’t be surprised that the court declined to delve further into the related issue of whether Trump is actually guilty of the crime of insurrection.
What should surprise us, though, is what the court did next. While the decision that Colorado had acted improperly was unanimous, five of the conservative justices on the court went even further and basically eviscerated the insurrection clause of the Fourteenth Amendment based on a legal principle which they invented out of whole cloth.
The majority’s ruling is simple: the Fourteenth Amendment, they say, actually has no legal force unless Congress passes legislation to enable it. In the absence of Congress passing a law which clearly defines a process by which someone will be found to be an insurrectionist and hence subject to disbarment, they argue that nobody can be disbarred. This means that not even federal courts can enforce the insurrection clause until Congress passes such legislation, which it has not and will not in the foreseeable future.
How exactly the court reached this conclusion is about as clear as Clarence Thomas’s expense account. Other parts of the constitution are not considered to be inoperative until Congress specifically makes them operative. This also applies to the rest of the Fourteenth Amendment, which was a post-Reconstruction measure aiming at ending the legal basis for slavery and the denial of citizenship to former slaves. In fact, in Shelby County v. Holder, the Supreme Court invalidated key sections of the Voting Rights Act based on the argument that Congress had acted in a way inconsistent with the Fourteenth Amendment, making it clear which had priority. What justification can there be for reversing the order of priority in this case?
If the legal justification is slim, it’s slightly easier to see how the majority might see this decision as serving their interests in the coming year. The court decided to use this case as a platform to issue a wide ruling going far beyond what they were actually asked to decide. That suggests to me that they’re up to something - but what is it?
The answer probably relates to possible further challenges to Trump’s eligibility down the line. Before this ruling, it was always a possibility that someone would use the insurrection clause to challenge Trump’s eligibility for the presidency in federal court, and a decision to merely prohibit the states from disbarring him would have left that option open. With this ruling, the door has shut on that possibility - only if Congress passes enabling legislation in order to label Trump as an insurrectionist would there be any hope of bringing a challenge to his candidacy. And of course this Congress, with a Republican majority, is not going to do that.
So the majority have done Trump a solid favor, sweeping away one more possible obstacle to him assuming the office that he previously disgraced - and he didn’t even have to ask them to do it. There are still plenty of other cases coming up before the Supreme Court concerning Trump this year, and the early indications are that the majority are very willing to help him win them - even if they have to make things up as they go along.