March 5, 2024 | Reading Time: 7 minutes

Supreme Court’s GOP justices open the door to dictatorship

They would allow Trump to run for president until he dies, no matter how many insurrections he incites, writes Claire Bond Potter.

Courtesy of Wikimedia Commons.
Courtesy of Wikimedia Commons.

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Editor’s note: The following, delivered to Editorial Board subscribers only, first appeared in Political Junkie, Claire’s fabulous newsletter. Oh, and remember: for the best reading experience, click on the headline. That takes you back to the website. Things will look so much better. –JS

The Supreme Court of the United States decided unanimously that the state of Colorado (and by extension, all other states) must put Donald Trump on the 2024 presidential ballot. 

But it wasn’t unanimous in spirit, as I will explain below.

The decision itself isn’t a surprise. I expected it, and have been skeptical from the get-go that attempts to exclude Trump from the ballot were a good use of anyone’s time and money. Given the fragile state of our democracy, and the prevalence of conspiracy theories and 2020 election denialism in the Republican Party, it was unlikely that, however poorly Trump’s lawyers argued the case, Chief Justice John Roberts would deny millions of people the opportunity to vote for a dangerous cluck. Essentially, this is what Associate Justice Amy Coney Barrett says in her separate (and enigmatic) concurring opinion.

As an institution, the court already stands accused of micro-engineering the 2000 election by stopping the vote count in Florida and making George W. Bush president. It seems like this happened only yesterday, but trauma is like that. Only one member of today’s court remains from the jurists who made that decision. You guessed it: it’s Associate Justice Clarence “Bags O’ Cash” Thomas. 

Furthermore, there’s the important question of how a decision to exclude Trump from the ballot could backfire in future elections. It seemed more than possible that should states be permitted to expel presidential candidates from the ballot, the GOP, which has absolute power in some states, would attempt to engineer a 2028 – or even a 2024 – election with no Democrat on the presidential line at all.

In the name of securing democracy, the court’s extreme right has done the opposite: potentially insulating the presidency from the authority of any other branch of government, legal entity or the voters themselves.

Nevertheless, the case asked an important question. Does Section 3 of the 14th Amendment, intended in 1868 to prevent the return of Confederate rebels to power in a government they had tried to overturn, apply to Trump, who summoned a mob to sack the Capitol and prevent Joe Biden from becoming president? 

This is what Section 3 says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Trump v. Anderson was argued on February 8, 2023: as a quick aside since a bunch of other Trump cases are headed to SCOTUS in the coming weeks and months, the Supreme Court can clearly make a decision quickly if it wants and needs to (the people of Colorado vote today.) You can read the decision here if you want. It’s only six pages long, which is what happens when all the Justices concur and, more importantly, when they have less than a month to do their homework.

The question at hand was this: was Trump “disqualified” from holding the office of president, as the Supreme Court of Colorado had affirmed in January, because he “engaged in insurrection” against the Constitution of the United States, thus violating his oath “as an officer of the United States” to “support” the Constitution. 

In other words, does the president fit in one of these named categories? By “officer,” did the framers of the amendment mean any officer of the government, or (more plausibly, in my view) military officer? And if so, is the commander in chief a military officer?

But the rightwing majority of the court — Roberts, Thomas, and Associate Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh — evaded that question. Instead, they focused on the language pertaining to who should enforce Section 3: “the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates.” To answer that question, the court directs us to Section 5, “which enables Congress, subject of course to judicial review, to pass ‘appropriate legislation’ to ‘enforce’ the Fourteenth Amendment.” 

What the rightwing majority concludes from this history is that Section 3 permits the states to “disqualify persons holding or attempting to hold state office. But,” they continue, “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency” (emphasis mine.) Why? Because the American people as a whole elect the president, and the Fourteenth Amendment does not specifically reserve the power of governing the election of federal officeholders to the states.

As the majority argues, there is no “tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Fourteenth Amendment,” which leads to the conclusion that states have never believed that they had this power. Finally, if states had the power to enforce Section 3, they were likely to do it differently, because they have different laws governing elections, which would not only be incoherent, but also create chaos by “changing the behavior of voters, parties, and States across the country, in different ways and at different times.”

In other words, although the Constitution also makes the states responsible for running their own elections, the states cannot enforce a key provision of the Constitution about who might not be eligible to run. 

Or leave a tip here ($10?). Thanks!

So five rightwing SCOTUS judges just exempted the presidency, and only the presidency, from Section 3, making it legally possible for the commander-in-chief of the armed forces to attempt to stay in office by force. Which is exactly what Trump tried to do on January 6, 2021.

But wait, you are asking: Aren’t there six conservative justices?

Why yes, and this majority decision seems to have put Associate Justice Amy Comey Barrett in a tizzy. Allowing Trump to stay on the ballot in all 50 states was a “choice,” she argues, and a good one given how fragile our political culture is. What she doesn’t argue is that the Constitution required the solution that her colleagues devised. But she doesn’t say why.

Instead, Barrett gives a little lecture about how everyone needs to calm the fuck down, or however People of Praise Catholics express that sentiment. “In my judgment,” Barrett writes, 

this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.

Keep an eye on Girlfriend. She’s beginning to look like a possible swing vote on questions of democracy. Lessons we might draw from this weird semi-concurrence? Well-educated women really hate Donald Trump. Also, if Trump wanted a lackey, he probably shouldn’t have breathed covid all over Barrett’s kids when he announced her nomination in 2020.

Then Associate Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson sound the alarm. In their concurrence, they argue that if the court’s rightwing is correct in its conclusions, it has not only misread the Constitution, but done so in a potentially disastrous way. 

Excluding the presidency from Section 3 makes it legal for a proven insurrectionist to run for the presidency, or stay in it once he is there.

Brilliantly, the liberal minority points out their conservative colleagues’ hypocrisy by leading with a quote from Dobbs: “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” 

As the minority points out, Roberts, Thomas, Alito and Kavanaugh avoided the question at hand, and opened a big, ugly can of worms instead. By “deciding not just this case, but challenges that might arise in the future” and “insulat[ing] this Court and petitioner from future controversy,” the minority points out, barring an act of Congress, no one can be barred from running for president, even if they metaphorically wipe their behinds on the Constitution.

The situation that the court has now conjured is this: what if Trump, or someone else (think: JD Vance) tries it again? Do these tyrants and tyrants-in-waiting, when they are successfully defeated at the ballot box, then get to keep running for president and inciting riots until they take the government by force?

Furthermore, directing Congress to enact legislation to specifically exclude offices, if any, from the terms of Section 3, ignores the fact that Section 3 already gives Congress a role, but a limited one: to remedy, and nothing else.

In other words, in the name of securing democracy, the court’s extreme right has done the opposite: potentially insulating the presidency from the authority of any other branch of government, legal entity or the voters themselves. “The American people have the power to vote for and elect candidates for national office, and that is a great and glorious thing,” the liberal minority asks:

The men who drafted and ratified the Fourteenth Amendment, however, had witnessed an “insurrection [and] rebellion” to defend slavery. They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oath-breaking insurrectionist from becoming President. Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision. 

“Because we would decide only the issue before us, we concur only in the judgment,” they conclude.

Now, let me say: I have never believed that this court would save us from Donald Trump. But it is graphically clear: there is no majority on the court that will protect our democracy, or prevent a tyrant from seizing and holding onto power. There’s only us now.

Which means it is left to “we the people” to save the republic by voting Democratic and organizing our friends to do so as well.

Get to work, friends.

Claire Bond Potter is the Editorial Board's politics historian. A professor of historical studies at The New School for Social Research in New York City, she is the co-executive editor of Public Seminar and the publisher of Political Junkie. Follow her @TenuredRadical.

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