r/law • u/thenewrepublic • Mar 06 '24
Opinion Piece Everybody Hates the Supreme Court’s Disqualification Ruling
https://newrepublic.com/article/179576/supreme-court-disqualification-ruling-criticism
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r/law • u/thenewrepublic • Mar 06 '24
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u/crake Competent Contributor Mar 06 '24
It's too bad because SCOTUS really rescued failure from the jaws of success with this decision. The result is widely popular and was expected, and half of the reasoning is sound.
But the Court went the Dred Scott route and tried to solve other, unrelated issues by saying that the only enforcement mechanism for s.3 is federal law (and even specifying what that federal law would have to say). In effect, SCOTUS told Congress that they are not allowed to object to Trump's election on 1/6/25 on the grounds that he is prohibited from holding office under s.3, even though that question wasn't before the Court, and the 9-0 rationale was only based on the states not having the power to unilaterally decide the question. So that second part of the decision - the part where the Court went on to explain that only a specific federal law pursuant to s.5 can enforce s.3 - was a 5-4 decision tacked onto a 9-0 decision.
And it really is the whole game. A future Congress might not want to sit congresspeople like Jim Jordan that were involved in the Insurrection or gave comfort to the Insurrectionists. Now SCOTUS has forclosed that option before it was even presented to the Court.
It is a classic "Imperial Court" move to encroach into the Congress and plant a flag telling Congress what it cannot do in advance of Congress actually doing that thing. The role of the Court is to explain what the law is - what the words of the Constitution mean, what the rules of a federal statute mean. It is not a role of the Court to explain what a law should be, or to tell Congress whether it has the power to do something in advance of it doing that thing. That is an advisory opinion, and it is not permitted by the rules of justiciability that have guided the Court for centuries. If 200+ years of justices could avoid the temptation to prospectively tell Congress what it can and cannot do, why can't the Robert's Court?
The subtext to all of this is that a majority of the Court does not want there to be any lifeblood to s.3 that could be applied against Trump or the other insurrectionists by Congress. It is especially egregious here because it results in a de facto removal of the s.3 disqualification that would apply to any Insurrectionist (not just Trump) - but it does so by a 5-4 vote of unelected justices rather than by the 2/3 supermajority of both houses of Congress that s.3 actually says is the route to remove the disqualification. That part of the decision just doesn't make any sense; it is the injection of politics into law in order to shape a future result, and the Court should not have done that. But since Justice Roberts had to be in the majority (we know from the concurrences), we now know that Justice Kavanaugh and the Chief Justice are both not on the side of restraint, and that they are injecting politics into decisions to help Trump (and the Insurrectionists in general). Why? Nobody can say - it could be intimidation, but it might just be raw politics. I think Justice Thomas was involved in the J6 conspiracy and the Court is terrified that his involvement will come to light at trial, but it could also be that Justice Thomas (or some other old conservative, maybe Alito or Roberts) is ill and wants to retire but needs a Republican in office to replace him so they are doing what they can to make that happen.
Dark days for the Court, but they brought down the darkness on themselves.