Where are the dissents?

As pro-Trump decisions multiply, the Supreme Court minority seems increasingly lost.

Samuel Corum/BBG

This morning, the Supreme Court handed down a per curiam opinion reversing the Colorado Supreme Court’s exclusion of Donald Trump from the state’s primary ballot for being an oathbreaking insurrectionist—a category of person whom the Constitution’s 14th Amendment disqualifies from holding federal office.

The Court did not quarrel with Colorado’s determination that Donald Trump is, in fact, an oathbreaking insurrectionist. Instead, the Court held—for the first time—that states lack the power to enforce that qualification for federal officeholding in their administration of their elections. (And the Court’s MAGA majority went further, holding that the provision could only be enforced by a particular sort of act of Congress.)

The Court’s opinion, by my lights, is atrocious. It is unmoored from the Constitution’s text, which, without any doubt, expressly commits the election of federal officials to each state’s administration. It misconstrues American history, and it fails to take account of the unprecedented situation the Trump movement’s violent and lawless pursuit of power has thrust upon the union and each and every state.

In a passage that epitomizes the weak reasoning of the decision, the Court writes:

As an initial matter, not even the respondents contend that the Constitution authorizes States to somehow remove sitting federal officeholders who may be violating Section 3. Such a power would flout the principle that “the Constitution guarantees ‘the entire independence of the General Government from any control by the respective States.’” Trump v. Vance, 591 U. S. 786, 800 (2020) (quoting Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232 U. S. 516, 521 (1914)). Indeed, consistent with that principle, States lack even the lesser powers to issue writs of mandamus against federal officials or to grant habeas corpus relief to persons in federal custody. See McClung v. Silliman, 6 Wheat. 598, 603–605 (1821); Tarble’s Case, 13 Wall. 397, 405–410 (1872).

The respondents nonetheless maintain that States may enforce Section 3 against candidates for federal office. But the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States. The terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5.

The difference of course is that, while states are given no power anywhere in the Constitution to remove sitting federal officeholders or issue them writs of mandamus, they were given the power to administer the federal aspect of elections in Article I and Article II of the original Constitution and no amendment has ever (wholly or in any pertinent part) taken it away. Because the original Constitution had already conferred this power on the states, there was no need for “the text of the Fourteenth Amendment” to “affirmatively delegate” it all over again to authorize the state to operationalize a constitutional qualification to hold office.

As weak as I may find the reasoning and textual basis of the Court’s judgment, it is immensely strengthened by the concurrence of all nine Justices in the result. There were no dissents noted today. The three liberal Justices filed a concurrence in the judgment that rightly criticizes the court for deciding more than the case before it required. But that concurrence also deploys lamentably weak reasoning to justify the majority’s fundamental holding. Look how the concurrence contorts the word federalism beyond all recognition:

In this case, the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the ground that he is an oathbreaking insurrectionist and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment. Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles. That is enough to resolve this case.

But but but federalism is a state-by-state patchwork! That’s the whole idea. We don’t dispatch commissars from DC to dictate how ballots are printed to make sure they all look exactly the same. We have all fifty states run their own elections, often with state-specific quirks, because the federalist parts of the Constitution require it. Indeed, that requirement has led to a lot problems in the past! But we stick to it; we’ve fashioned a whole rickety apparatus, which the court is constantly tinkering with, to let states handle administering their elections within the Constitution’s guardrails. Today, all of as sudden, and according to all the Justices, letting Colorado make up its ballot in accordance with the Constitution’s prohibition on oathbreaking insurrectionists somehow violates the Constitution’s design. It is baffling.

Even more baffling is the lack of even a single dissent that takes issue with the Court’s poor reasoning and the abysmal consequences of dismembering a protection against insurrectionists and traitors taking the reins of the government that was duly written into our fundamental law.

Today’s decision, with its dispiriting liberal concurrences, comes on the heels of last week’s order granting certiorari to Trump to determine the (absurd) question of whether a president can commit any crime he wants while in office and, if he asserts it was an official act, enjoy immunity from prosecution for it.

We don’t yet know the Court’s views on this miserable subject, but we do know that the way it’s managed the issue has greatly benefited the oathbreaking insurrectionist in question.

When the issue of purported presidential immunity arose last year, DOJ petitioned the Supreme Court to decide it right away (without waiting for an intermediate level of appeals to play out) in order to avoid delaying Trump’s trial in the January 6th case and interfering with the election. The Court denied DOJ’s request.

As a result, the DC Circuit heard the appeal—which took months—and issued a decision robustly denying the existence of any such immunity. (And I would challenge you to find a single commentator who isn’t paid by Donald Trump who thinks the DC Circuit got that wrong.)

Then it was Trump’s turn to appeal to the Supreme Court. They took several weeks to think about it, and then—on the exact same issue they’d previously declined to hear on an expedited basis—agreed to hear the case and set a relaxed briefing schedule and oral arguments in late April.

The result of all this procedural folly was to delay Trump’s trial, probably beyond the presidential election—raising the possibility he may retake the oval office before he faces justice for trying to violently steal it.

There were no noted dissents to the Supreme Court’s decisions in the immunity case. Not one Justice picked up a pen to note the lamentable delays or to complain that the Courut’s majority had made an in-kind contribution to Trump’s campaign.

Increasingly, it appears, the popular majority of the United States that believes our presidents are accountable to the law—not just in theory but in actual practice—and does not want to see a violent, oathbreaking insurrectionist hold power again has no voice in the nation’s highest court.