The question of whether states can disqualify Donald Trump for having \u201cengaged in insurrection\u201d wasn\u2019t particularly difficult for the Supreme Court \u2014 as expected. The court ruled unanimously Monday that states can\u2019t enforce that clause of the 14th Amendment against federal and presidential candidates, in part because allowing them to do so would be chaotic.<\/p>\n
But then five justices decided to make the broader decision difficult indeed. They did so in a way that the court\u2019s left flank seemed to regard with more than raised eyebrows.<\/p>\n
If the court wanted to present a united front now that it is deciding some crucial and contentious Trump-related issues, it failed. And now the situation practically screams: What is going on behind closed doors at the court?<\/p>\n
One section in particular stands out from Monday\u2019s decision in Trump v. Anderson.<\/p>\n
\u201cEven though \u2018[a]ll nine Members of the Court\u2019 agree that this independent and sufficient rationale resolves this case,\u201d Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson wrote in their concurrence, \u201cfive Justices go on.\u201d<\/p>\n
And then the key part: \u201cThey decide novel constitutional questions to insulate this Court and petitioner from future controversy.\u201d<\/p>\n
Just to underscore, the \u201cpetitioner\u201d is Trump. The liberal justices were saying their colleagues went on to decide \u201cnovel\u201d issues \u201cto insulate\u201d Trump.<\/p>\n
You can parse that all day. But it sure sounds as if they\u2019re saying that insulating Trump was, at least in part, the purpose of the court\u2019s going beyond the basic question.<\/p>\n
To recap the decision: The five majority justices ruled not just that states \u2014 Colorado, in this case \u2014 can\u2019t disqualify Trump, but that the insurrection clause of the 14th Amendment can\u2019t be enforced against a federal candidate without Congress laying out a process. It raised the bar significantly for Trump or anyone else ever being disqualified, particularly given how gridlocked Congress is.<\/p>\n
Justice Amy Coney Barrett wrote that the court needn\u2019t have decided such larger issues, which weren\u2019t before the court.<\/p>\n
But while Barrett tried to downplay her disagreement and emphasize the overall unanimous decision, Sotomayor, Kagan and Jackson went in a different direction. It seems their concurrence was at one point labeled a partial dissent, and that makes all kinds of sense when you look at its content.<\/p>\n
It\u2019s one thing to say that the opinion has the effect of insulating Trump; it\u2019s another to say that it was done \u201cto insulate\u201d him.<\/p>\n
Justices, of all people, choose their words carefully. And some experts regard this choice as conspicuous, suggesting the three liberal justices were flagging a perceived political motivation.<\/p>\n
\u201cIt is an unusually frank statement, calling the majority politically motivated and seeking to protect one individual,\u201d said Tonja Jacobi, a Supreme Court scholar at Emory University Law School. She added: \u201cUsually they say something like that in more coded terms.\u201d<\/p>\n
Lawrence Baum, a scholar at Ohio State University who has written books about how justices operate, noted that the three justices simply could have criticized the court for insulating itself and not invoked Trump.<\/p>\n
\u201cIt\u2019s reasonable to think that the justices in the majority didn\u2019t want to have to deal with potential disqualification in any subsequent case, especially a case coming close to (or after) the November election,\u201d Baum said. \u201cTheir opinion serves that purpose very well.<\/p>\n
\u201cBut the dissenters could have left it at that, so their \u2018and petitioner\u2019 is significant. That does have an edge to it, with what may be an implication of partisan motivations.\u201d<\/p>\n
The three justices cast a harsh spotlight on the majority in other ways, too.<\/p>\n
For instance, they began with a quote from Chief Justice John G. Roberts Jr., when he argued in 2022\u2019s Dobbs v. Jackson for a more restrained approach that didn\u2019t overturn Roe v. Wade. \u201cIf it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,\u201d Roberts wrote. The clear suggestion was that Roberts wasn\u2019t following his own advice.<\/p>\n
They also characterized the justifications for the new standard as woeful \u2014 calling them \u201cgratuitous\u201d \u201cmusings.\u201d One such justification was a lower court decision from then-Supreme Court Chief Justice Salmon P. Chase that the liberal justices noted wasn\u2019t binding precedent. Another justification cited by the majority was the disputed comments from a key figure in the drafting of the 14th Amendment, Sen. Lyman Trumbull, about whether the insurrection clause needed legislation to be enforced.<\/p>\n
What to make of it?<\/p>\n
Certainly, the concurring justices might have worried about the future implications of what the five majority justices did \u2014 both in raising the bar for disqualifying an insurrectionist and in what it could mean for how other amendments are to be enforced. The decision could create chaos if there is a real congressional effort to disqualify Trump at some point.<\/p>\n
But particularly given the \u201cto insulate\u201d line, it\u2019s difficult to separate this dispute from the court\u2019s other Trump-related decisions. Just a week ago, the court took up Trump\u2019s immunity claim despite an appeals court ruling emphatically against him. The move further delayed Trump\u2019s election-subversion trial date \u2014 which was initially set for Monday \u2014 and made it unlikely that a verdict will come before the 2024 election.<\/p>\n
The court\u2019s decision to take up the case was an apparent win for Trump in and of itself. And now, just a week later in another case, we have three justices suggesting the court had just bent over backward to insulate him.<\/p>\n<\/p>\n
The question of whether states can disqualify Donald Trump for having \u201cengaged in insurrection\u201d wasn\u2019t particularly difficult for the Supreme Court \u2014 as expected. The court ruled unanimously Monday that states can\u2019t enforce that clause of the 14th Amendment against federal and presidential candidates, in part because allowing them to do so would be chaotic. […]<\/p>\n","protected":false},"author":0,"featured_media":1787,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-1786","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-politics"],"_links":{"self":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/posts\/1786","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"replies":[{"embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/comments?post=1786"}],"version-history":[{"count":0,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/posts\/1786\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/media\/1787"}],"wp:attachment":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/media?parent=1786"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/categories?post=1786"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/tags?post=1786"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}