People For the American Way

Fed-Up Progressive Justices Are Calling Out the Majority’s Agenda

Fed-Up Progressive Justices Are Calling Out the Majority’s Agenda

First published in The Hill.

For the last several days, there have been reams of analysis of the Supreme Court’s ruling in Trump v. Andersonin which the justices ruled that Colorado couldn’t invoke Section 3 of the 14th Amendment to bar Donald Trump from the ballot.

It’s a lot, but I want to add my kudos to the three progressives on the court, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. With a few well-chosen words in their concurrence, they proved that they’ve sussed out the far-right majority’s real agenda hiding behind a public pretense of nonpartisanship.

Yes, indeed all nine justices ruled unanimously that Colorado could not exclude Trump from the presidential primary ballot, which the Colorado Supreme Court had said it could do according to Section 3 of the 14th Amendment. That section says oath-breaking insurrectionists can be barred from holding office.

But the five-justice conservative majority avoided saying that Trump couldn’t be excluded because he wasn’t an insurrectionist. Presumably, that’s because they know by any reasonable definition, he is one — so even they couldn’t go there.

So, they invented a rationale that Congress would need to pass another law to put Section 3 into effect. The three progressive justices quickly pointed out that’s nonsense; nothing in the language of Section 3 calls for additional legislation. And no other part of the 14 Amendment calls for additional laws to be passed for it to be enforceable.

They also wrote that in inventing an additional hurdle to enforcement of Section 3, the ultraconservative majority “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”

I’ve seen that reported as the justices just saying that the conservatives’ position would effectively protect insurrectionists. But there’s a lot of significance in the word “attempts,” according to some legal experts.

It means the progressive justices aren’t just saying there would be an effect. They’re saying the far-right justices are deliberately trying to engineer an outcome: protecting alleged insurrectionists and making sure they can still hold federal office.

Of course, the best-known alleged insurrectionists alive today are Donald Trump and members of the MAGA crowd that tried to overturn the 2020 election.

So in choosing the word “attempts,” the progressive justices are letting us know that they see the majority’s partisan agenda, and they’re calling it out.

That’s concerning, not least of all because the court has already chosen to take Trump’s case claiming total presidential immunity from prosecution for any crimes. Two lower courts already ruled against Trump. The court didn’t have to take this case.

And it didn’t have to schedule the case for April, further kicking the can down the road; its conservative majority has to know that Trump’s strategy in all the cases against him is delay, delay, delay — and hope to win the election.

I hope these warning signs are false alarms. But they’re deeply troubling to see.

Meanwhile, there’s a set of hard facts we have to face. One is that it’s time to stop pretending the Supreme Court is still the nonpartisan institution it once might have been; the current majority has been captured by the far right.

Another is that, like it or not, the court will continue to play a major role in a very contentious and close presidential election. It’s not off the table that it could even be called upon to decide that election, in an unwelcome repeat of Bush v. Gore.

And finally, it’s highly unlikely that any court, any prosecutor — and now, after Super Tuesday,  any other Republican candidate — will stop Trump from becoming the Republican nominee for president.

The good news is that voters can still stop Trump from occupying the highest office in the land. With Trump now sure of a spot on the ballot, it looks like we’ll get that chance.


Supreme Court, Trump