The Misplaced Bravado of Justice Coney Barrett
We all should be unanimous.
Who asked?
The purveyor of this news, proffered Monday, is recent Supreme Court appointee (2020) Justice Amy Coney Barrett. Her opinion reveals how far the tether to reality and the Constitution stretches at the high court.
Weighing in on the mainly reactive majority opinion to overturn Colorado’s decision to disqualify Trump from the state ballot, Justice Barrett opines that America needs to follow ‘our path’ and act with ‘unanimity:’
“I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that. This suit was brought by Colorado voters under state law instate court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can been forced. The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.” (1)
Is this a constitutional interpretation or a reproach?
Consider that Coney-Barrett’s concurrence pivots the 5 justice majority away from the protection clause in section 3 to the enforcement clause in section 5. (2 Savage)
Consider that by not interpreting that Trump is an insurrectionist, some Justices — including Coney Barrett — have opened the door to a quiet Hungary-style insurrection. (3)
Consider what’s left is a three Justice dissent waiting to happen, a kind of judicial forced error:
“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 oath breaking 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 (all) 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.” (4)
Not what an impartial observer would call a ‘slam dunk’ unanimous opinion.
Rather than attend to constitutional matters, Coney-Barrett mines the public space with opprobrium
That’s chutzpah.
To invert the reasoning behind “self executing,” in the name of de-amplifying the rhetoric is akin to putting the genie back into the bottle. The point is America is divided and dividing, so to leave the question of enforcement exclusively to Congress is not amplifying?
Congress is stumbling on funding its own programs.
This point was not lost on Jack Smith and AG Merrick Garland who in eschewing legal rhetoric and further evidentiary haggling from the defendant’s team, opted to exclude insurrection from the four indictments. This strategy in the short term doesn’t help America’s case. The political ‘forced error’ is yet to be witnessed. (5 See also Robert Reich and Joyce Vance)
March 5
Later on Monday, as media attention shifted from the Supreme Court decision to Super Tuesday, a nervousness settled in — the kind that’s followed by dread that this primary season, which effectively ended Tuesday night may foretell the last peaceful national election in America.
Wednesday, Trump took the day off from harassing witnesses in the pending New York hush money trial, to thank the Supreme Court for keeping him on the ballot in Colorado, Maine and the rest of the forty-eight.
A salubrious slap on the wrist: glad you came to your senses.
March 7
Notes
1- Cited in Joyce Vance, “Civil Discourse,” Substack.com
2- Charlie Savage, “Highlights of the Supreme Court’s Opinions on Trump’s Ballot Eligibility,” March 4, The New York Times
Charlie Savage, “The Supreme Court’s decision centers on Section 3 of the 14th Amendment,” March 4, The New York Times
3- David Leonhardt, “Is Hungary a Model for Trump?,” March 7, The New York Times
4-Adam Liptak, Justice Amy Coney Barrett Stakes Out Distinctive Stance in Trump Case,” March 5, The New York Times
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