As it confronts an epochal series of decisions about how we conduct our presidential elections, the U.S. Supreme Court is skating on thin ice.
Monday’s unanimous decision restoring Donald Trump to the Maine ballot just before in-person voting in Tuesday’s presidential primary was not unexpected, but its sweeping nature certainly was.
The court agreed that individual states cannot bar a presidential candidate from the ballot through the “insurrection clause,” Section 3 of the 14th Amendment. Maine Secretary of State Shenna Bellows immediately withdrew her earlier ruling.
But the court’s Republican majority went much farther, finding that to make the insurrection clause workable, Congress must pass legislation specifically applying it.
This turns the 14th Amendment on its head. The three post-Civil War amendments were the first to specify that Congress may enact legislation to enforce its provisions.
It does not say the Congress must pass legislation for those provisions to have effect. If that were true, a whole host of decisions based on the 14th Amendment would be invalid.
Starting in the late 19th century, the court interpreted the amendment liberally to strike down regulation of business, and in the 20th century moved aggressively against racial and gender discrimination under provisions for “equal protection of the laws.”
Chillingly, the court has now made a candidate like Trump practically immune from challenge, which can hardly constitute the legal or practical meaning of the amendment in any century.
The further difficulty the court faces, again self-created, lies in a second major case – Trump’s claim he has “absolute immunity” for any action he took as president.
In the end the court is likely to rule, hopefully unanimously, against such audacious claims. During oral arguments before the U.S. Court of Appeals for the D.C. Circuit, Trump’s attorney even insisted that if Trump ordered the murder of a political opponent while president, he couldn’t be prosecuted.
This would make Trump a king, or a tyrant like Vladimir Putin, and not a president subject to the same laws as everyone else.
Instead, the appeals court’s definitive and unanimous opinion found that “For the purpose of this criminal case, former President Trump has become citizen Trump … any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
The Supreme Court has now taken Trump’s appeal, further slowing a trial more than three years after the events of Jan. 6. 2021 – from different perspectives seen as a riot, invasion of the Capitol, or attempted insurrection.
The high court had the opportunity to decide earlier when prosecutor Jack Smith asked it to bypass the appeals court. It declined, let the appeals court rule, and could have accepted the result.
Instead, it decided to take the appeal and schedule arguments in April, the last possible week during its current term. That could delay a final ruling well into June.
Despite casual predictions this will push Trump’s trial beyond the Nov. 5 election – his announced goal – it’s highly unlikely.
What could ensue is a presidential candidate going on trial well into the fall – not an inviting prospect as voters finally start weighing their decisions, rather than being subjected to endless, practically hourly opinion polls.
The court’s dispatch in deciding the ballot access case vs. slow-walking the immunity case rouses suspicions it’s implicitly favoring Trump, allowing him to escape timely accountability for his alleged crimes – some 91 felony counts in four separate proceedings.
The specter of Gore v. Bush, the court’s previous intervention into state election proceedings, looms on the horizon. What everyone knows is that the Dec. 12, 2000, decision by the court’s 5-4 Republican majority made George W. Bush president.
What’s sometimes forgotten is that the court cut short a recount of the disputed Florida vote, meaning we’ll never know who actually won that election – Bush, or Democrat Al Gore.
The court began its unprecedented involvement when it suspended rulings of the Florida Supreme Court governing the recount and provided new instructions.
After Florida attempted to meet these conditions, the court intervened again to declare “game over.” The court said in its unsigned ruling it wasn’t establishing a precedent, but it was.
A Republican court declared a Republican candidate president and is dangerously close to aiding a candidate who even now doesn’t accept that he lost the 2020 election – though his own attorneys admit he did.
The American people deserve to know whether Trump is guilty or innocent of the charges Smith has brought well before November.
If the court delays much longer, it may make the whirlwind that followed its 2022 Dobbs decision on abortion look like a tempest in a teapot.
Douglas Rooks has been a Maine editor, columnist and reporter since 1984. His new book, “Calm Command: U.S. Chief Justice Melville Fuller in His Times, 1888-1910,” is available in bookstores and at www.melvillefuller.com. He welcomes comment at drooks@tds.net
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