By Chris Satullo
That old Fram oil filter commercial had a great punchline: “You can pay me now, or you can pay me later.”
In other words, you can do something unpleasant now – fork over for a new filter – or you can end up paying a heck of a lot more down the road for an engine repair.
The nine justices of the U.S. Supreme Court perhaps should do a YouTube search and give that ad a rewatch.
On Thursday, the court held its oral arguments on a fairly consequential matter: Can states bar Donald Trump from the ballot as an insurrectionist, invoking Section 3 of the 14th Amendment? Or should we just ignore that pesky old Constitution and let Trump proceed with whatever he gets it into his lizard brain to do?
During the hearing, it sounded like the justices – and not just the conservative ones – were very much inclined in this instance to just let Donald keep being Donald. To stick with the automotive theme, the justices’ questions at the hearing clearly sought an off-ramp in order to avoid colliding head-on with the real issues at play.
The background: The 14th Amendment, passed after the Civil War, includes a clause barring from holding a host of government offices anyone who takes part in – or materially aids – an insurrection. Those who drafted it were very worried, for example, that Confederate leaders like Jefferson Davis might someday win a U.S. Senate seat. But Section 3 does not specify that it applies merely to the Civil War; it looks forward as well as backward, to any potential future insurrection.
Like…uhhh…Jan. 6 and the whole Stop-the-Steal coup that led up to it?
By and large, the justices seemed desperate not to confront that question, which was so central to the Colorado Supreme Court ruling that Trump’s name should be stricken from its state’s ballot. A lower-court judge who initially ruled on this suit by some Colorado voters conducted a painstaking evidentiary hearing. She concluded that, yes, Trump was involved in an insurrection up to the tippy-top of his orange coiffure. The state Supreme court majority upheld her finding.
But the U.S. Supremes did not want to go there. They oh-so-did-not-want to go there. Their questions were a cry for help: Find us an off ramp!!!
Several wondered out loud whether, were Trump to be tossed from the ballot, that would unleash a flood of attempts to use Section 3 to bar candidates.
Hmmm. Seems like there’s an easy way for candidates to avoid that risk: Don’t foment an insurrection!
Some justices, Neil Gorsuch in particular, latched on to a hair-splitting judgment made by the Colorado lower-court judge – one later overruled by the higher state court. The lower-court judge concluded that, because the amendment didn’t specifically cite the presidency as one of the “federal offices” under its purview, the insurrection prohibition didn’t apply to a presidential candidate.
Yeah that makes sense: When we list the insurrectionists whom you really don’t want to let anywhere near constitutional powers, by all means let’s exclude people seeking the most powerful elected office on the face of the planet.
The justices for whom that seemed too fine a hair to split zeroed in on another argument raised by Trump’s attorneys in this case (who were far more competent than some other examples we’ve witnessed lately): Letting states decide a la carte whether to exclude a candidate’s name from a ballot for federal office would create a crazy-quilt election that would lack credibility.
As Justice Brett Kavanaugh put it: “(Colorado’s) position has the effect of disenfranchising voters to a significant degree. What about the background principle, if you agree, of democracy?”
A fair point, needing to be addressed.
First off, Justice K, yes, disenfranchising voters is a bad thing. Like, just to cite a random example, when Donald Trump tried to deploy lies and thuggery to disenfranchise the 81,283,501 voters who elected Joe Biden president in 2020.
But think it through: Removing Trump from the November ballot would not steal anyone’s vote the way Trump tried to. They’d get to vote in November, just not for this particular candidate. Courts take candidates off ballots all the time for sins such as submitting fraudulent nominating petitions. Is it not worse to put the lives of the Capitol police, the vice president and Speaker of House in danger while attempting a coup?
Second, one way to avoid such election confusion would be to uphold the text and intent of the Constitution (supposedly such a holy commandment for the conservative majority on the court). Section 3 seems pretty clear: No insurrectionists allowed.
Next, look honestly at the mounds of right-before-our-eyes evidence that Trump fomented this violent attack on the nation’s Capitol to carry out a coup. Finally, inform all the states: Sorry, guys, but Mr. Trump is as ineligible to run for president as somebody who doesn’t meet the clear age and place of birth requirements of the Constitution, or who has already served two terms.
But the justices would rather let Rachel Maddow impose a code of ethics barring them from accepting all outside gifts, speaking fees and free vacations than to deal forthrightly with the central question of Trump the insurrectionist.
Third – and I hesitate to bring this up because blatant hypocrisy is such a way of life these days on the Supreme Court that it gets tedious to harp on each new example – the conservative bloc on the high court has repeatedly cited an individual state’s right to determine the conduct of elections within their own borders, even federal ones, in cases involving the Voting Rights Act, gerrymandering and (painful memory) Bush v. Gore.
Yet, there went Kavanaugh and others saying that the only way states could enforce Section 3 was if Congress first passes a statute giving them specific authority to do so.
But two fabled constitutional scholars – one conservative (J. Michael Luttig), one liberal (Laurence Tribe) – wrote a powerfully reasoned joint essay last year insisting that Section 3 was “self-enforcing.” In other words, once a determination of insurrection was reached, the prohibition was as automatic as it would be if a 28-year-old naturalized native of Honduras sought to run for president. No congressional legislation needed.
In other words, the real issue before the court was not hair-splitting over 19th-century syntax, but this: Was the Colorado judiciary right in its determination that a) Jan. 6 was an insurrection and b) Trump planned and abetted it?
Even liberal justices had their heads on a swivel looking for the on-ramp they could use to escape those questions. Elena Kagan, she who once authored scathing dissents in gerrymandering and voting rights cases, opined meekly that the issue here was “more political” than constitutional.
“Staying out of politics” is what justices always claim to be doing when they uphold an election law status quo that favors the political team they prefer. Yet, from abortion to guns to gerrymandering, our conservative justices have routinely issued major rulings favoring the organized minority that feeds them speaking fees and free vacations, while ignoring the wishes of a clear majority of Americans. Isn’t that also “political”?
I get it. Barring a former president from the ballot would be an awesome, painful and risky step to take. No serious jurist wants to be forced into the business of deciding a national election before voters go to the polls. And no one in their right mind wants to subject themselves – or their loved ones – to the vitriol, the threats, the doxing, the swatting that surely would await anyone who prevented MAGA cultists from voting for their idol.
But nobody promised that defending the U.S. Constitution from those who would trash it was going to be all seashells and balloons.
The justices surely must recognize that this won’t be the end of it. First, if Trump wins, some voter is going to file a suit saying that, even though he couldn’t be barred from the ballot, he’s still ineligible to serve.
Far more than that, if Trump wins – as current polls say he very well might – he has promised to unleash an unremitting assault on the Constitution and the rule of law. Nothing in his behavior over the last five years, and particularly the last two, offers any comfort that he somehow will back away from the vengeful excesses that his speeches and campaign website promise.
So, instead of suffering the immediate pain now of doing what is needed to obey the Constitution and preserve the Republic, the justices seem ready to opt for a worse fate: a nightmarish four (?) years of battle after battle after battle with a would-be autocrat and his violent cultists.
These are battles they might well lose, leaving them to go down in history (if accurate histories of Trump Redux ever get written) as the weaklings who failed the Republic in its final hour of need.
Justices, please pay the price now so that we don’t all have to pay it grievously later.
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Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia