The Supreme Court just allowed Jan 6th insurrectionists to run for Congress

It's not just Trump. The conservatives on the court opened to door to every MAGA extremist who stormed the Capitol to run for the House or Senate, warping the Constitution.

The Supreme Court didn’t just unanimously rule that Donald Trump will remain on the Colorado ballot and the ballot of any other state that challenged his candidacy.

The ruling is much more far-reaching, virtually gutting the insurrection clause, Section 3 of the 14th Amendment.

By a 5-4 majority, the court’s conservatives—minus one—ruled that Congress would have to decide via special legislation if any insurrectionist in the states who is running for a House seat, a Senate seat, or the presidency is disqualified. Yes, the same Congress that right now is itself filled with insurrectionist supporters in the GOP, whose likely candidate for president is an insurrectionist. It’s pretty much assured that there will never be any such legislation—surely not in this political era.

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Thankfully, we have some ace legal experts (who I turn to for guidance), because a lot of this is not being explained by the corporate media, which is only talking about the decision as a 9-0 ruling with concurring opinions showing some differences among the justices’ rationale.

But those differences are vast. The three liberal justices, as Mark Joseph Stern at Slate (who comes on my SiiriusXM program every Tuesday and will be on today) explains, wrote a concurring opinion that “glows white-hot with indignation, [at the] majority’s overreach.”

Justices Sotomayor, Brown Jackson, and Kagan rightly note that the majority’s decision “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”

The three liberals agree with the majority that, in this case, Trump, as a presidential candidate, should remain on the ballot, as they believe, along with the rest of the court, that the framers of the 14th Amendment wouldn’t have intended for individual states to remove a presidential candidate and affect other states’ decisions in a presidential election and create mass confusion.

You can agree or disagree with that, and many legal experts, both conservative and liberal, strongly disagree. (Lisa Needham at Public Notice offers a cogent analysis of why the entire court failed while the conservative stunningly overreached.)

But that’s where the three liberals drew the line.

A conservative majority of five decided to go much further than it needed to go in order to keep Trump on the ballot. It not only decided that Section 3—which bars insurrectionists from office—only allows states to disqualify those running for state office; it decided that those running for federal office—which would include a House or Senate seat, or the presidency—or those appointed to federal office could only be disqualified by Congress via vague special legislation that doesn’t exist and is highly unlikely to exist at any time in the near future.

This makes no sense since Section 3 itself states that only Congress, by a vote of two-thirds, can remove the disqualification of an insurrectionist from office—which of course assumes that some other entity, namely their state, disqualified that person in the first place.

The five conservatives rely on Section 5 of the 14th Amendment—the final section—for their twisted rationale, which simply states:

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

But that doesn’t mean that only Congress is charged with enforcing the provisions of the 14th Amendment—as it clearly doesn’t say that—but rather that Congress can (“shall have the power to”) enforce them, perhaps, for example, by using its authority to enhance or further protect them. The majority’s decision is just plain bonkers, since the other sections of the 14th Amendment have never required special federal legislation to enforce them. As Stern writes:

It is bizarre to claim that the insurrection clause requires enabling legislation by Congress when the remainder of the 14th Amendment—indeed, all three amendments ratified after the Civil War—is “self-executing” (meaning it does not require congressional action for enforcement).

Everyone agrees that Congress does not need to pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement.

Why, the liberals wondered, did the majority create “a special rule” for the insurrection clause alone?

They added that the clause does mention congressional action, but only to say that Congress may lift a disqualification by two-thirds vote: “It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.”

Even Amy Coney Barrett broke with the other conservatives, writing her own concurring decision pointing to how the conservatives went too far but distancing herself from the liberals’ “stridency” in their concurrence because she believes the “volatile season” of the “Presidential election” is not the time to “amplify disagreement.”

Being lectured by Barrett about contributing to a “volatile” political atmosphere after the havoc she’s helped wreak—including overturning Roe—is pretty rich. No matter her disagreement with the liberals’ tone, however, she provided the fourth dissenting vote against the brutal assault on the Constitution by the five other conservatives.

And make no mistake: the conservatives have altered the Constitution. As the columnist David French—a Christian conservative and right-wing constitutional attorney with whom I’ve had many disagreements—noted, “As of Monday, March 4, 2024, Section 3 of the 14th Amendment of the Constitution is essentially a dead letter, at least as it applies to candidates for federal office.”

The majority created something out of thin air, and it defies their (always dubious) claim to adhering to “originalism.” This court’s conservative majority is just about outcomes, which they start with and then work backwards to figure out a way—however nonsensical—to get to those outcomes. And the court’s liberals wouldn’t have any part of it and hit them hard:

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.

And they point to how the majority is protecting Trump, MAGA, the GOP, and themselves:

They decide novel constitutional questions to insulate this Court and petitioner from future controversy...

…[Their decision] forecloses judicial enforcement of [Section 3], such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. 

This seems to be looking at the possibility that Trump, if he were to become president, appoints a prosecutor or attorney general, for example, who we later learn was involved in the insurrection. Why shouldn’t someone be able to defend themselves in court against a prosecution by a known insurrectionist, arguing that that person should not be in federal office—per Section 3—without having Congress pass special legislation to decide that?

There is simply no justification for the conservatives to go further than they needed and then create this new rule. But their zeal may be because the decision doesn’t just protect any future insurrectionists—and thus the GOP—from controversy should insurrectionists run for high office or be appointed to federal offices; it further protects Trump, both regarding his role in the 2020 insurrection or in any further insurrection he’s involved in, by only allowing Congress to enforce the insurrection clause and not a federal court via criminal trial. Needham writes:

Functionally, the majority has provided only one path forward to stop Trump: that Congress must pass a law that more clearly defines what an insurrection is, who an insurrectionist is, and what penalties should apply, and do so in time for the November 2024 election.

And Stern explains, referring to the liberals’ concurrence:

As the liberals point out, the majority’s sweeping Congress-only approach “forecloses judicial enforcement” of the insurrection clause—in, for instance, the context of a criminal trial involving an insurrectionist. It also bars future enforcement on the basis of “general federal statutes” that compel “the government to comply with the law,” since the majority says any congressional enforcement must be “tailored” to the insurrection clause.

And it even empowers the Supreme Court to prevent Congress from disqualifying an insurrectionist in the future because the court can claim that any enabling legislation did not adhere to the made-up rules in Monday’s opinion.

There is one bit of good news that others have pointed out: The court didn’t decide Trump didn’t engage in insurrection, and in fact much of the discussion seems to assume he did.

So we’ll take that. But the court’s majority has no care or concern about its transparent warping of the Constitution, arrogantly and blithely brushing aside the criticisms in the liberals’ concurrence.

That’s not a shocker, as we’ve seen this before. But the stunning lack of cover in this case should give us pause even about Trump’s immunity claim in the January 6th case, which could result either in stalling of the case or some creative decision to help Trump and only Trump. Anything is possible with these people.

As I’ve said, we cannot rely on the courts, and certainly the Supreme Court, to save us. We must beat Trump at the ballot in November. It’s the only way.