Colorado lost as a unanimous Supreme Court held that a state cannot disqualify a candidate for president on its own. How did a unanimous, per curiam, opinion, as concurrer Justice Amy Coney Barrett, turn up the heat? The majority didn’t stop at deciding what Colorado could not do, but went a few steps beyond by deciding that pursuant to Section 5 of the Fourteenth Amendment, it was left to Congress to enact enabling legislation to effectuate Section 3, the disqualification clause that applies to oath breaking insurrectionists, of which no one on the Court questioned.
There are two separate questions raised by the majority’s leap into the abyss. First, should they have gone beyond deciding no more than Colorado was wrong without saying what was right? Second, was the propriety of their decision, that Section 3 was not self-executing but requires an act of Congress to implement it (meaning that by inaction, Congress could erase it from the Constitution)?
Both Ilya Somin and David French offer some compelling arguments as to why the five were wrong. Here, the question is whether the majority failed to exercise judicial restraint by deciding more than necessary to resolve the case before them.
On the one hand, the Court’s jurisdiction is limited to cases and controversies, and the Court cannot, and should not, decide hypothetical issues. They aren’t briefed. They aren’t argued. There are no fact patterns before the Court and they aren’t necessary to resolve the one and only matter that the Court has taken up. Once a decision ends the dispute before the Court, its job is done. If there is more to be done, it will have to wait for another case to come before the Court where the issue is ripe.
On the other hand, the Court doesn’t really do very much. It has agreed to hear 56 cases this term. Fifty-six. What are the chances that issues left unresolved, questions left open, will get resolved this decade, no less this year, when the Court only takes 56 cases a term? What about the other states disqualifying Trump from the ballot? Some have already done so. Others were waiting for the outcome in Colorado.
If the three justices in concurrence in outcome, but otherwise chastising the five for overstepping their bounds, had it their way, each of these states would have had to engage in litigation to their state supreme court and then seek cert at SCOTUS, where we would go through this circus over and over, state by state, deciding only that state’s decision and nothing more.
To put it in a less controversial context, when Justice Wild Bill Douglas wrote the Brady v. Maryland decision, he played one of the most venal games with criminal defense counsel possible. He gave the defense the right to disclosure of exculpatory material. What he failed to do was provide any mechanism for doing so. When was it to be disclosed? Did it require the defense to demand it or was it incumbent on the prosecution to do so? Who decided what was exculpatory and what happened if it wasn’t disclosed? Does it cost the prosecution a conviction or is it just a reversal and do-over, thus providing no incentive to comply? To this day, these questions remain unanswered and this exceptionally critical right remains in a state of perpetual flux.
Whether this Court’s holding that Section 3 isn’t self-executing, but requires enabling legislation is the right path, at least it is a path. The Court provided guidance to Congress and the states as to what was needed to disqualify a candidate. Had the Court exercised restraint and done nothing more than hold Colorado was wrong, would we have been better off without any clue as to what was right?
While the concurrers disagreed with the majority’s holding that an act of Congress was needed, and there is good reason to question whether the majority’s solution is a good one, was it wrong of the majority to address the pending questions already raised by the other states attempting disqualification or would it have been better to await each state’s process to wind its way to the Supreme Court for resolution, no matter how many election cycles it took?
*Tuesday Talk rules apply.
It was a practical decision. Section 3 was written in the context of a vicious civil war that lasted four years, and was designed to prevent hardcore unrepentant Confederates from reassuming an active role in the federal government they sought to destroy. January 6th was outrageous, but was it an “insurrection”? That’s apolitical question for the legislative branch to answer, and ultimately voters. President Trump egged the mob on, and for that (among other reasons) I won’t vote for him, but Article 3 was a reach. The Colorado Supreme Court went overboard. Just encourages the MAGA folks and the Trump campaigns fund raising effort. The people who despise Trump the most are the ones who keep making him stronger. Ironic.
No, not practical. Not even close.
With the example before us now, is any Congress going to pass enabling legislation to give the exclusionary power to the Executive Branch? No, they will keep the power for themselves. And what if Congress votes to exclude based on some hoax?
Pfui.
Enabling legislation already exists. The Insurrection Act carries a lifetime ban from holding public office.
If the evidence against Trump was as plentiful as claimed, he should have been charged under it. Yet he wasn’t. Odd.
Is this going to be one of those days when I really regret doing TTs or letting non-lawyers comment?
No, I’m not saying a word…oops.
After reading the comments so far – all sources point to yes.
I got CLE credit once for listening to Erwin Chemerinsky explaining the wrongness of multiple SCOTUS precedents. Yet, at the end of the day, there is something about that word “supreme.” At least, when it is a federal word, and not merely a New York word.
This raises the question of how enabling legislation to exclude a candidate can be written so that it is not a bill of attainder. If Congress writes a a bill specifically naming Trump, that seems a lot like a Bill of Attainder, alternatively saying that a member of the Republican Party in January 2021 is ineligible is overbroad, although some Democrats would love the idea.
The concurrence came from 3 left-wing loons and Barrett. The loons were going to lose anyway, and they didn’t want to make themselves ridiculous by dissenting, so their whining concurrence is unsurprising. It’s fortunate that they didn’t have a majority.
Barrett appears to have principles that she will not violate, and damn the consequences. The five who wrote the majority opinion are more pragmatic; they have principles but they will compromise in order to avoid creating chaos. I don’t see a problem with that. We live in a real world. The principle of judicial restraint is a good one, but as a justice said in a different context, it’s not a suicide pact.
Allowing every different state to litigate the matter separately was not a practical solution.
I hate it when those left wing loons run around concurring.
I wonder if the dissenting concurrences would feel the same had the majority not come up with an answer beyond merely holding that Colorado lost. Their appreciation of judicial restraint seems just as, if not more, partisan in this case as than the majority’s requiring congressional action. Would they feel the same need for restraint if they approved of the majority’s solution? I doubt it.
Republicants and so-called conservatives in recent decades have been touting “states rights.” Which issue is a throwback to Civil War era confederates who touted same, and went to war over the issue.
So fast forward, and now a majority of our Supremes are denying Colorado their right to remove a candidate from their duly established primary election process within their duly established borders. I don’t get it? If tRump’s name is not on the ballot, the prospective voters there may simpley “write it in,”… if they are literate. (We wonder if some of the Supremes are not illiterate themselves? Not naming any names. Ahem!?!)
They should have denied cert–and standing–as they did in my 2008 case which was docketed on the first try. Without the help of any lawyer, I might add. Needless to say, I disagree with this decision, as I disagree with many. The Supremes are supremely ridiculous. Out of control, shall we say!