Elect Democrats. Reform the Court. Defend the Constitution. Preserve Democracy.

March 5, 2024

The most important lesson from Monday’s disqualification ruling is that the Supreme Court is broken beyond repair. The reactionary majority made that fact abundantly clear by unilaterally amending the Constitution to remove the Insurrection Clause from the 14th Amendment.

Those sworn to protect the Constitution are dismantling it. The protectors of the Constitution have become its adversary in order to protect a failed insurrectionist who has promised a second effort to overthrow the Constitution. (“I said I want to be a dictator for one day.”)

There are many reasons to ensure that Donald Trump is not elected to the presidency in 2024. Rehabilitating and reforming the Court is chief among them. Sadly, reforming the Court is below the radar for most voters. But the lawless reactionary majority has already denied women the full protection of the liberty clause of the 14th amendment; it is refusing to enforce the clear intent of the 14th to ensure that descendants of enslaved people have a meaningful right to vote and equal protection under law. And the logical force of the Dobbs opinion strongly suggests that the Court will withdraw existing protections for same-sex marriage, contraception, and “inter-racial” marriages.

Monday’s opinion is a clear warning to all Americans that the threat to their liberties is immediate and real. Those who seek to protect existing liberties (and reclaim those already abrogated Court) must vote as if their freedoms depend on the outcome of the 2024 election—because they do!

The Court has abandoned the Constitution; the last line of defense is the American people exercising their most fundamental right—the right to elect their representatives, who can (in turn) enlarge the Court and limit its jurisdiction.

There is abundant evidence that many Americans are not inspired by either presidential candidate or feel betrayed, forgotten, or ignored by the political process. But one candidate will seek to defend their freedoms by preserving and enforcing the Constitution (in part, by reforming the Court). The other has promised to overturn the Constitution “for one day”—which means “overturn the Constitution” period. The duration of a suspension of the Constitution is irrelevant.

Feelings of anger and upset over Monday’s ruling are understandable and warranted. But the most appropriate response is to redouble our efforts to defeat Trump. Nothing else matters. If we achieve that goal, we can work to advance all other goals. If we do not, we will be at the mercy of a renegade majority on the Court and an out-of-control, aspiring dictator for four years.

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What happened?

On Monday, the Court overruled the Colorado Supreme Court’s decision removing Trump from the Colorado primary ballot. The opinion is here: 23-719 Trump v. Anderson (03/04/2024).

The ruling was ostensibly 9-0 with three justices writing a concurring opinion that reads like a dissent and a concurrence by Amy Coney Barrett that criticized the overreach of reactionary majority. In fact, as explained below, the ruling was 5-4, meaning that Justice Thomas’s refusal to recuse himself (as required by statute and rule) was outcome-determinative. Justice Thomas’s corruption saved Donald Trump's slot on the Colorado ballot.

Distilled to its essence, the US Supreme Court’s ruling in Trump v. Anderson removed the Insurrection Clause from Section 3 of the 14th Amendment.

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How did the Court effectively remove the Insurrection Clause from the 14th Amendment?

The 14th Amendment creates a self-executing disqualification for insurrectionists who previously took an oath to support the Constitution. The self-executing nature of that disqualification is consistent with other provisions of the 14th Amendment (equal protection, due process) that are likewise self-executing—as are other qualifications on the presidency (such as age, citizenship, and tenure of residency in the US).

Despite the plain language of the 14th Amendment—which creates a bar to holding federal office based on the conduct of the insurrectionist standing alone—the Court ruled that the Insurrection Clause is ineffective unless Congress affirmatively passes legislation that conforms to narrow prescriptions of the Court’s opinion in Trump v. Anderson.

The reactionary majority ignores that Section 3 of the 14th Amendment speaks to the role of Congress in enforcing the Insurrection Clause. It says that Congress can remove an insurrectionist’s disqualification by a two-thirds vote. But under the Court’s ruling in Trump v. Anderson, Congress can prevent any disqualifications of insurrectionists by simply refusing to pass the enabling legislation prescribed by the reactionary majority.

As Justice Sotomayor wrote in her concurring opinion,

It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by . . . declining to pass implementing legislation.

As George Conway noted on Monday on MSNBC, the reactionary majority arrived at its conclusion by simply ignoring the language of the Constitution. The reactionary majority regularly uses the text of the Constitution as a cudgel when they want to deny liberties embraced by the language of the Constitution. But when they seek to ensure that a failed insurrectionist and aspiring dictator remains on the ballot, they act as if the text of the Constitution does not exist.

A reader wrote to me after the issuance of the opinion and asked, “What can we do?” My answer is this:

Elect Democrats. Reform the Court. Defend the Constitution. Preserve Democracy.

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Commentary on the Court’s ruling in Trump v. Anderson.

There is a lot of good commentary on the Court’s ruling in Trump v. Anderson. I found Mark Joseph Stern’s article in Slate the most helpful. See Mark Joseph Stern in Slate, The Supreme Court’s unanimous Trump ballot ruling is actually a 5–4 disaster.

As Stern notes, Justice Roberts could have achieved a 9-0 opinion (instead of the 5-4 opinion he actually got) if he had simply convinced his colleagues to hold that on the facts of this case, Trump could not be disqualified from the Colorado ballot by a state court. (There were several ways to achieve that result, which are now moot.) Instead, Roberts joined the reactionary majority in endorsing a radical, sweeping opinion that re-writes the 14th Amendment.

As explained by Stern,

The [majority] went much further than the case required, announcing an entirely new rule that Congress alone, through “a particular kind of legislation,” may enforce the constitutional bar on insurrectionists holding office.

As the three liberal justices pointed out, in a separate opinion that glows white-hot with indignation, the majority’s overreach “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”

They are, of course, correct. After this decision, it is impossible to imagine a federal candidate, up to and including the president, ever being disqualified from assuming office because of their participation in an insurrection.

Stern explains the central over-reach in the majority’s opinion:

[I]t is bizarre to claim that the insurrection clause requires enabling legislation by Congress when the remainder of the 14th Amendment—indeed, all three amendments ratified after the Civil War—is “self-executing” (meaning it does not require congressional action for enforcement).

Everyone agrees that Congress need not pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement. Why, the liberals wondered, did the majority create “a special rule” for the insurrection clause alone?

[The liberal justices] added that the clause does mention congressional action, but only to say that Congress may lift a disqualification by two-thirds vote

It is a measure of the unprincipled approach of the reactionary majority that no set of judicial rules of interpretation can explain the majority’s holding. They just made up a result without regard to the text of the Constitution. The rationale cannot be explained; all that matters is the result. The reactionary majority has granted itself unfettered authority to determine political outcomes without regard to the Constitution, precedent, or rules of judicial interpretation.

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Other notable aspects of the opinion.

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Clarence Thomas should not have participated in this decision because his wife is a material witness, at least. His participation is a judicial scandal and a national disgrace. So, too, is the silence of the other eight justices who sit beside a justice who is plainly biased and disqualified (by statute and rule) from participating in matters in which his wife is a witness.

If Thomas will not recuse himself, the other justices should declare that his participation is unethical and prohibited. Otherwise, the American people will understand that a 5-4 opinion favoring Donald Trump was decided by a justice whose wife witnessed insiders plotting to overturn the election (at least).

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The metadata in the opinion suggests that Justice Sotomayor’s concurrence was originally a dissent.

Thanks to the careful review of Mark Joseph Stern, it is apparent that the concurring opinion was initially styled as “concurring in part and dissenting in part.” See Mark Joseph Stern, Slate, Supreme Court metadata reveals last-minute change in Trump ballot case.

Stern discusses the implications of the last-minute change in the concurring opinion of the three liberal justices. But it appears that Justice Sotomayor was prevailed upon at the last minute to convert her dissenting opinion into a concurring opinion—which is how the concurrence reads. That last-minute “deal” is why the Court's order is styled as 9-0 instead of 5-4 or 5-1-3.

In short, the ostensible 9-0 ruling is a disjointed, unprincipled, and fractious opinion that will not stand the test of time. Indeed, commentators are already noting that the opinion will be a laughing stock in constitutional jurisprudence for centuries to come.

Shame on Justice Roberts, shame on Justice Thomas, and shame on the reactionary majority for their dishonesty and faithlessness. They have once again abandoned the Constitution and the rule of law when it matters most.

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Opportunity for reader engagement in Los Angeles on Sunday.

Join me in person on Sunday in Los Angeles for a “Civic Sundays” meeting.

I will be appearing in person at a meeting of “Civic Sundays” in the Silverlake/Los Feliz area of Los Angeles at 10:00 A.M.–12:00 Noon on March 10. Sign up below to obtain the address. Proof of vaccination is required and there is a cap on attendance, so don’t delay!

Civic Sundays has been meeting weekly since early 2017 working to get progressives elected in Southern California and nationwide. Join us to reach voters via phone bank, text bank, postcard, and canvass. Every contact makes a difference. 

Sign up to receive Sunday's meeting address here: Civic Sundays Meeting -- Sign up here!

Join the Civic Sunday's email list for weekly updates here: Civic Sundays weekly update.

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Concluding Thoughts.

Although there is a lot more going on, the Court’s opinion granting relief to an insurrectionist is all I can cover this evening (due to travel). We will complete our journey back to Los Angeles on Tuesday, and I hope to return to my regular format and coverage on Wednesday.

On the last day of our trip down the Mississippi, we visited the National World War II Museum in New Orleans. The museum is extraordinary, and we recommend it to anyone within driving distance. To do it justice, reserve at least two days to see all of the exhibits, including the extensive multi-media presentations.

My wife created a video on an aspect of the museum that spoke to her—the exhibit devoted to women who joined the war effort as WACs (Army), WAVs (Navy), and WASPs (Army Air Forces). Her mom served as a WAC and her aunt served as a WAV. Jill’s video on the exhibit is here: "Our War Too" Women in Service at the National World War II Museum in New Orleans (everydaywithjill.com)

And tonight, I adopt her remarks from her blog as my concluding thoughts:

It's the last day of our Mississippi River tour, and the visit to the World War II Museum was a fitting last activity.

Fighting for freedom and democracy is an arduous and noble task. I am proud of the part that my parents played in their service to our country in World War II.

But it didn't stop there.

Robert and I have continued their tradition of service.

Our trip down the Mississippi was, in part, a Democracy Tour where we met with readers to inspire, advocate, and provide the fuel necessary to help other democratic advocates find their voices, and continue their service to America, fighting for the dignity and equality for all.

So, though our trip ends tomorrow. Our service will not. We will continue to fight for the democracy that we all deserve.

Talk to you tomorrow!

2024-03-05