The Supreme Court as a Independent Branch of Government? The Colorado Ballot Question

 

There will doubtless be a lot of analysis and nattering, about the Supreme Court of the United States ["SCOTUS"] ruling on the Colorado ban of Trump on the presidential ballot. But the decision, in essence, remains a bad one that is largely indefensible. While the ruling may be rationalized as “convenient” or “pragmatic,” because it comes on the verge of a presidential campaign, it nevertheless represents an abdication of the role and responsibility of SCOTUS as supreme arbiter of the language and principles of the Constitution. SCOTUS shifted that responsibility to Congress, though nothing in the Constitution or the 14^th Amendment states that its proscriptions and requirements are “subject to the enforcement or interpretation” of Congress. A longstanding principle of jurisprudence is that wording in the Constitution and legislation is to be given its "plain meaning" where the language is clear and unqualified. This SCOTUS ruling would have us accept that the Constitution may not mean what it explicitly says, unless Congress agrees with that plain meaning, and is capable of acting* to confirm that plain meaning.

Indeed [and I may be a stickler here to make a point], the SCOTUS has previously recognized and ruled that 14^th Amendment equal protections under law are enforceable even as against - not subordinate to – laws passed by Congress that infringe upon such rights. The SCOTUS ruling also states that Congress, and not the states, may enforce the 14th Amendment provision. But state courts routinely make rulings that enforce 1^st, 5^th and 14^th Amendments to the Constitution. So, the rationale that states cannot interpret the Constitution is a doubtful one. And the fact that SCOTUS must make difficult rulings on Constitutional issues does not justify deferral to Congress.

Democracy is admittedly a messy process, but that untidiness does not excuse SCOTUS from making legally sound and coherent decisions, even when the result might be "inconvenient." The Brown v. Bd of Education [14^th], Lemon v Kutzman [1^st], Miranda v. Arizona [5^th] and many other SCOTUS decisions interpreting and enforcing the Constitution all created significant “inconvenience” for governmental, educational, police, judicial, and other institutions when their practices were at odds with Constitutional principles.  While SCOTUS has a traditional caution about deciding “political questions,” this case did not present an essentially political question, until SCOTUS chose to make it one for political reasons. The question was simply: if “A” is an established judicial fact, then does “B” necessarily follow?  The Colorado Supreme Court confirmed that Trump's actions met the definition of an “insurrectionist” and someone giving aid and support to insurrection [“A”]. The 14^th Amendment, sec. 3, states that anyone who has previously sworn to uphold the Constitution and has engaged in insurrection cannot hold office [“B”]. The 14^th Amendment says nothing about equivocation based upon a potential candidate’s popularity or political party affiliation. The twisted SCOTUS ruling says that states can only apply the 14th Amendment, Sec. 3, to state offices. But the 14^th Amendment doesn't say anything about limiting authority of states to apply its restrictions only to “state” offices. That was a convenient and dishonest SCOTUS artifice.

There are two additional points of concern relating to the SCOTUS as an institution. If the designated third branch of government, tasked with final authority of deciding the meaning of language and principles contained in the US Constitution, cannot or is unwilling to uphold that responsibility, what is the need for such a body or institution? And when an abdication of that duty and role occurs specifically with regard to a question concerning fealty to a political strongman or party, can SCOTUS any longer make a legitimate claim to “independence?” The options for remedy might only be to abandon SCOTUS, or to remove justices who are incapable or incompetent to uphold its Constitutional responsibilities. Again, this is not a matter of differing opinion on legal principles or doctrine because there is no jurisprudential grounding for the ruling. 

Finally, it is disappointing that Justices Kagan, Sotomayor, and Jackson-Brown participated in the ruling, even as a concurrence in the result. If they were going to concur in the result, while distancing from the majority, there was an obligation to provide a sound legal basis and explication for such action. Moreover, judicial integrity would have called upon them to refuse to sign on to any ruling relating to the Jan 6 Insurrection in which Clarene Thomas was a participant. His participation destroyed the integrity and impartiality of the ruling. It does not matter what side of the ruling Thomas was on [though that aspect was a given], because his wife was an active participant in the fake electors plot and also attended the Jan. 6 Rally that preceded the attack on the Capitol. 

* Deferral to, and dependence upon, the current Congress that cannot even pass legislation to keep the government running or to provide essential foreign aid to allies is a dim hope.