DOJ's fatal error? Colorado disqualification case rejected - Trump v. Anderson (03/04/2024)

Judiciousness is a virtue little heeded at today's Supreme Court.  The nine agreed that barring Donald J. Trump from a state primary ballot was a bridge too far for a state court.  Striking a former President - especially one leading in the opinion polls - is too much.  I agree even though the text of the 14th Amendment's Section 3 is entirely sufficient to bar Trump from resuming the office of President:

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

But Congress may by a vote of two-thirds of each House, remove such disability.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. 

In Trump v. Anderson the Colorado case labeling Donald J. Trump an insurrectionist, five Justices - including the `institutionalist' Chief - wanted to and did go far beyond deciding the case before them.  Demands for broad new legislation followed. The ancient adage that equitable decrees should be tailored precisely to the matter sub judice evaporated.  The "least dangerous branch", as conservative icon of yesteryear Alexander Hamilton described it in Federalist 78, has rejected such calls to caution.  In Dobbs (no constitutional right to abortion), Bruen (unfettered right to possess high powered rifles) the high court has broad brush erased long standing personal rights, and statutes designed to protect the public health.  That imprudent pattern continues - as, consenting only in the judgment, declare Justices Sotomayor, Kagan, and Jackson:

Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment. 

Agreeing that  "States lack the power to enforce Section 3 against Presidential candidates"Amy Coney Barrett joins the three Democratic Party appointed women  by rejecting the  demands for new legislation in part II A of the majority opinion.   She laments  "stridency" in the face of a "volatile" election period.  It is alarming to hear a conservative jurist warn of volatility in our Republic. We are a long way from the "shining city on a hill" evoked most famously by the conservative icon Ronald Reagan in his 1989 farewell address.

The majority opinion barring states from interfering with federal elections marches relentlessly and elegantly to its broad commands for Congressional action, laying out a road map for the new Enforcement Act it demands, which was, they seem to think, neglected by those who actually restored the national government after the dreadful suffering of the war to save chattel slavery of African Americans.

Perhaps the fatal error will prove to be Jack Smith's failure to charge Donald J. Trump with insurrection under 18 U.S.C. 2383.  It provides:

§2383. Rebellion or insurrection

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

(June 25, 1948, ch. 645, 62 Stat. 808 ; Pub. L. 103–322, title XXXIII, §330016(1)(L), Sept. 13, 1994, 108 Stat. 2147

- GWC  3/4/2024

23-719 Trump v. Anderson (03/04/2024) - per curiam, Barrett concurring, Sotomayor, Kagan, Jackson concurring only in the judgment

JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON, concurring in the judgment. 

“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 348 (2022) (ROBERTS, C. J., concurring in judgment). That fundamental principle of judicial restraint is practically as old as our Republic. This Court is authorized “to say what the law is” only because “[t]hose who apply [a] rule to particular cases . . . must of necessity expound and interpret that rule.” Marbury v. Madison, 1 Cranch 137, 177 (1803) (emphasis added). Today, the Court departs from that vital principle, deciding not just this case, but challenges that might arise in the future.

 In this case, the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the ground that he is an oathbreaking insurrectionist and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment. Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles. That is enough to resolve this case. Yet the majority goes further. Even though “[a]ll nine Members of the Court” agree that this independent and sufficient rationale resolves this case, five Justices go on. They decide novel constitutional questions to insulate this Court and petitioner from future controversy. Ante, at 13. 

Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment.