Three weeks to restore an insurrectionist, seven months to say he can't assassinate rivals

A partisan court gives Trump two legal lifelines

Catie Dull/NPR

After showing a remarkable lack of interest in the underlying facts, the U.S. Supreme Court has kept an adjudicated insurrectionist- by definition unfit to be president- on the ballot. 

During oral argument, apart from Justice Jackson, the Court asked almost no questions about Colorado’s predicate finding that Donald Trump engaged in insurrection: That on January 6, 2021, following two months of frenzied attempts to overturn his election loss, Trump summoned supporters to the ellipse, goaded them with false and incendiary claims that their votes had been “stolen,” then prodded the frothing mob to storm the capitol.

Just three weeks after argument, the Court ruled that states cannot remove insurrectionists from the presidential ballot under Section 3 of the 14^th Amendment. 

Apart from the substance of the ruling, the partisanship of the court’s timing is glaring: It took them only three weeks to restore an insurrectionist to the ballot, but they need seven months to rule that presidents can’t assassinate their rivals. 

The Court’s orchestrated timing has thrown Trump two major lifelines to tilt the November election in his favor.

The Court keeps an adjudicated insurrectionist on the ballot

Sec. 3 of the 14^th Amendment is short, does not lack clarity, and is not ambiguous. It bars anyone from federal office who “engaged in insurrection” after they swore an oath to support the Constitution. The opening words, “No person shall…” make the bar mandatory, not optional.

The U.S. Supreme Court could have reversed or limited the Colorado Supreme Court’s determination that Trump had engaged in insurrection, but it didn’t. That ruling remains legally intact.

Avoiding the shameful details of J6, alleged originalists on the Court got creative instead. Despite agreeing that Section 3 applies to candidates for president, and apparently agreeing that Trump engaged in insurrection, the high court ruled nonetheless that states could not enforce the insurrectionist ban without a separate act of Congress, lest “chaos” ensue in federal elections. 

It's hard to appreciate how years of election chaos from an insurrectionist trying to overturn an election are preferable to a state supreme court- or the U.S. Supreme Court- enforcing the plain terms of the Constitution.

Congress, Court point at each other

The court’s 5-4 majority decided that Section 3 isn’t self-executing, meaning it has no force or effect in the absence of additional congressional action. Building an off-ramp to keep Trump on the ballot, “conservative” jurists crafted a new legislative hurdle that has never been applied to the 14th Amendment. 

Although Section 5 of the same amendment states, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” that language does not give Congress the sole or exclusive right to act, it does not bar state or Supreme Court enforcement of the 14^th Amendment (or any other amendment), and it does not declare itself null and void, “unless and until Congress says otherwise.”

The Court making up language to defer to Congress is even more farcical considering that GOP Congressional leaders, for their part, left Trump’s insurrection up to the courts. Despite initially agreeing that Trump orchestrated the J6 capitol attack, GOP leadership voted against his impeachment, claiming it should fall to the courts, not Congress, to hold him accountable.

As GOP operatives in Congress and on the Supreme Court pretend that insurrection is someone else’s job, the Court has left it in the hands of Congress, fully aware that Congress won’t act. This is how putative “originalists” effectively re-wrote the 14^th Amendment to support their preferred outcome, and erased Section 3, paving the way for future insurrectionists.

Federalists forget about federalism

The Court ruled that, “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency,” otherwise state-by-state chaos would result. This from the same self-righteous lot that created life and death, state-by-state chaos under Dobbs, letting each state decide whether women- or zygotes- could live.

It also appears that a self-proclaimed federalist majority on the bench forgot the rules of federalism, under which states- not Congress- adopt statewide election laws. Under Article 1, Section 4 of the Constitution, states have the primary authority to set their own election rules, including the power to set the “times, places, and manner of holding elections.”

Under long-established election rules, election laws, including eligibility rules and who can appear on the ballot, have always varied greatly among the states. Changing that to aid Trump is some porous federalism at work.

Specious timing 

The speed with which the Court restored Trump to the Colorado ballot- just three weeks after oral argument- delivered Trump an immediate boost the day before Super Tuesday, when voters in fifteen states were headed to the polls.

While it’s comforting to be reminded that the Supreme Court can move with alacrity when it wants to, such as when it decided the 2020 election for George W. Bush in a matter of days, the quick timing on Trump’s insurrection stands in stark contrast to the presidential immunity case, on which SCOTUS deliberately drug its feet for months. 

Jack Smith asked the Supreme Court to decide Trump’s immunity claims in December. They refused,waiting instead for the Court of Appeals for the District of Columbia to weigh in. The D.C. Circuit weighed in with a unanimous and thorough decision rejecting Trump’s immunity claim, issued the first week in February. Then the Supreme Court waited nearly a month, and decided it would like to hear Trump’s immunity claim for itself, after all, and set the immunity hearing for late April.

A late April hearing on a case that has already been briefed to the hilt will likely result in a late June opinion; that opinion could again return the case to the appeals court to address any number of inquiries, which would prompt Trump to seek another interlocutory appeal, just to push the trial date past the November 5 election. As it stands, in rejecting Smith’s December request, and delaying the ruling until late June, likely pushing the trial start to October, the Court gave Trump’s campaign the key gift of seven to twelve months’ delay.

Although no one expects the Court to countenance Trump’s claim that presidents can assassinate political rivals with impunity, the minimally seven month delay is outrageous. It all but guarantees that Trump will not stand trial for his attempt to overturn the 2020 election while it matters to voters.

A partisan Court again shows its hand

The high court moved swiftly to restore Trump to the Colorado ballot in the insurrectionist case, but on the immunity case- where they will either have to rule against Trump or admit they are in on the GOP coup, they have deliberately delayed Trump’s trial until after it loses electoral relevance. 

The Colorado decision keeps an adjudicated insurrectionist on the ballot, ignores federalist rules letting states set their own election laws, rewrites the 14^th Amendment to require Congress to act before it can take effect, and protects future insurrectionists by erasing Section 3 in the meantime. 

Their other gift to Trump, their decision to slow walk the immunity ruling, is a gift of time, not substance, but it will have the same effect. Even a Court this nakedly partisan cannot grant a president complete criminal immunity, but their careful delay all but assures that, for Trump, the question will become irrelevant.