Monthly Archives: March 2024

On Trump v. Anderson and the Supreme Court’s Unanimous decision on Amendment XIV, Section 3 Disqualification

As I recently predicted (earlier, my predictions were different), the Supreme Court unanimously rejected Colorado’s effort to disqualify former President Trump from the ballot. It was a per curium ruling. Per curium means “by the Court,” speaking as a body, so there is no signed decision.

Justices Barrett, Sotomayor, Kagen, and Jackson concurred, making the decision unanimous, but all four dissented in part. Their disagreements with the decision mostly involve the idea that the court should rule as conservatively as possible and not stake out unnecessary positions.

The crux of the court’s decision appears to be that Section 5 of the Fourteenth Amendment vests the enforcement of the whole amendment, including Section 3, in Congress, not in the courts and not in the states. In making the latter point, the Court specified that the states are free to pass on the qualification or disqualification of state officials under Section 3, but cannot do so for federal officials. The former suggests that Congress could, through legislation, or perhaps through mere joint resolutions, declare the disqualification of individuals or entire groups of “insurrectionists” without resort to due process or the courts. This blunts the arguments of the more ignorant and self-serving of Trump apologists who claimed he could not be disqualified absent charges and a trial. As I have pointed out a dozen times, few if any of the many Confederates barred from holding office under Section 3 were declared insurrectionists at trial. This raises the interesting notion that Section 3, in essence, established an exception to the Constitution’s prohibition of bills of attainder, laws declaring individuals (or groups, presumably) guilty of crimes without court proceedings.

Some people will be thrilled with this decision on political, not on legal grounds. They will identify themselves through all manner of comments revealing that they have not read or understood the opinion just released and, sadly, revealing that they would not have cared much, or at all, how the Court interpreted the Constitution so long as Trump was not restrained by it. So much for fealty to the Constitution, I guess.

Other people will be deeply disappointed by this ruling on political, rather than legal grounds. They will probably declare that the fix was in, that the Court is corrupted, etc. They, too, won’t seem to care much whether the case was correctly decided based on the rule of law but will merely be angry that Trump will remain on the ballot, not giving much thought to the problems his disqualification might have unleashed long after Trump himself is gone or the danger inherent in allowing state officials to exercise such outsized influence in a presidential election. The state legislatures are bastions of all manner of retrograde ignorance. Do we really want people whose religion requires they shut down IVF procedures or who think it is OK to burn government buildings if you are angry enough making these kinds of decisions?

The plain truth is that this is a good day for our country and our institutions, not because Trump stays (the sooner he and those like him depart, the better), but because the entire Supreme Court stood up as one (or nearly so) for some legal principles that make a lot of sense if viewed through a legal and not a political lens. The message is clear. Until the American people stop being so vapid and ignorant, pursuing silly conspiracy theories, making up their own science, etc., we will have bad leaders. Take to the streets. Demand better leadership at every level. Stop electing left-wing, America-hating revolutionaries who detest our institutions and right-wing, religious fanatic, nutcase conspiracy theorists who love them only when they are in charge of them. The Reconstruction Era Congress is not going to get you out of this mess, and neither is the modern Supreme Court. You’re getting the government you deserve; deserve better.