Trump wins again in the MAGA Supreme Court

The Supreme Court, in the space of one week, had the chance to be remembered as the most courageous court in history, but instead handed a craven victory to would-be dictator Donald Trump.

It had the chance to be a court of law, and dispel any suspicion that it had become a court of MAGA. It certainly blew that one.

It had a chance to expound Section 3 of the 14th Amendment to the Constitution as it was written and as it was understood by the framing generation. It squandered that chance with a profligacy that shocks the conscience.

The court also had a chance to uphold the finding after trial in Denver that Trump was an “oathbreaking insurrectionist” (the liberal minority used those precise words four times to refer to Trump), and that he is disqualified from holding office again, but ducked that issue as well by simply ignoring it.

Were they afraid that allowing Colorado to take Trump off the ballot would bring about “chaos and bedlam,” as Trump threatened in his brief? They are not supposed to. In his infamous opinion overruling Roe v. Wade, Justice Samuel Alito wrote that “we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” The influence of extraneous influences on this MAGA court is inescapable.

The court might have found that Trump didn’t engage in an insurrection or that Jan. 6 wasn’t an insurrection at all. They ducked the issue of insurrection entirely. They didn’t say yes; they didn’t say no. When you are the Supreme Court, you can do that.

The justices might have held that Section 3 doesn’t apply to the president, but such a conclusion is contrary to the founding documents and the plain meaning of “hold any office.” They might have held that the president is not an “officer of the United States,” but such a ruling would have led the person in the street to think the justices had gone ga-ga as well as MAGA.

They tried to say that there was no precedent for a state to deny ballot access to a presidential candidate on the basis that he was disqualified under the Constitution. But perhaps they forgot the opinion of then-Appellate Judge Neil Gorsuch, in 2012’s Hassan v. Colorado, which held just that. And, by simply affirming the Colorado Supreme Court, they could have established a uniform national rule at the federal level that oathbreaking insurrectionists (we hope that there aren’t many) are disqualified from the presidency.

They might have held narrowly that one state could not disqualify a candidate from a primary ballot because it would create a crazy quilt of determinations, with some states disqualifying and others not, leaving the issue of disqualification for another day. That was the view of the four concurring justices, who happen to be the four women on the court. But the other five justices were hungry for more.

The majority knew that kicking the can down the road would leave a shadow over Trump’s candidacy, dogging his footsteps through the election, and this was one issue they never wanted to face again.

In Dobbs v. Jackson Women’s Health Organization, the Chief Justice made the salient pronouncement that, “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” and the four concurring justices stuck this indisputable statement in his eye. A court decides the case before it; it does not legislate for the ages. But this Supreme Court abandoned all judicial restraint, to make Section 3 a dead letter as far as Trump is concerned — or, for that matter, any future oathbreaking insurrectionist is concerned.

As the concurring justices pointed out, the majority shuts the door on a federal lawsuit, for example, to enforce the provisions of Section 3, where there would be no issue of a state disqualifying a candidate for federal office. Instead, the five Republican-appointed justices attempt “to insulate all alleged insurrectionists from future challenges to their holding federal office.”

True, Section 5 of the 14th Amendment grants power to the Congress to enforce its provisions by majority vote. But the Constitution does not say that is the only way to do it. The court has held that other provisions of the 14th Amendment, such as the due process and equal protection clauses, are self-executing and do not require an act of Congress.

And the court’s interpretation makes no earthly sense in that it reads Section 3 to say that a bare majority of theHouse or a 41-vote minority of the Senate (because of the filibuster rule) could permit an oathbreaking insurrectionist to hold office just by doing nothing, when the plain text states that it takes a two-thirds vote of both houses of Congress to excuse the disqualification. The framers weren’t crazy — only their interpreters when they go supremely partisan.

In 1937, President Franklin D. Roosevelt, in his ninth “fireside chat” to the nation, dissatisfied that the Supreme Court had invalidated his New Deal legislation in a number of five-to-four decisions, stressed that the court “has been acting not as a judicial body, but as a policy-making body.” Said FDR, in words applicable to this Supreme Court: “The court … has improperly set itself up as a third House of the Congress — a super-legislature … reading into the Constitution words and implications which are not there, and which were never intended to be there.” He exhorted the nation: “We want a Supreme Court which will do justice under the Constitution — not over it.”

Judges are not supposed to rewrite constitutional provisions they find objectionable on policy grounds, and they are not supposed to invent new provisions of law in order to devise policy “solutions” to texts they don’t like.

The court’s opinion will go down as a classic case of “the Constitution means what I would like it to mean,” the approach despised by the late Justice Antonin Scalia.

Trump and the MAGAs will by all means celebrate yesterday’s decision, as the oathbreaking insurrectionist inches towards the Oval Office. But, to crib from the chief justice’s dissent in Obergefell v. Hodges, “do not celebrate the Constitution. It had nothing to do with it.”

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.