Too Much Novelty, Too Little Justice
The Supreme Court whiffs a democracy-defining moment.
February 7
SCOTUS listed all the “off-ramps” for ‘conservative’ justices — all 6 of them — to dismiss Colorado’s claim that Trump is disqualified to run on the Colorado ballot. The off-ramp listing lasted over two hours.
In a drum beat of Bush v. Gore, the conservative justices, by disallowing the 14th, section 3 to apply, reversed other applicable amendments (1) and sustained the court’s political electioneering position of two decades, prior. In Bush v, Gore, the Court intervened, thumb on scale; in Trump v. Anderson, the Court hushed the state court in supporting the Secretary of State in blocking an insurrectionist from appearing on the ballot.
It was Amendment cherry picking time on First Street and the tidewater basin trees are not even in bloom.
By adopting the argument that the State of Colorado does not have the right under the 14th Amendment to bar Trump from running based on Colorado’s interpretation of section 3 closed the door on voter’s rights in this case. From this vantage, the Court seems once again prepared to intervene in the manner and process by which state voters elect federal office-holders, including the President.
One fault line of the Justice’s reasoning was the head scratching, where in the Constitution does it say, one state can call an election before votes are counted?
Heh, guys, it’s called the Electoral College. It’s why candidate Joe Biden has been to Michigan twice in the past fortnight. And no doubt will visit Michigan many, many times again before November 6.
And so will Trump.
But let’s not dwell here. The conservative Justices’ reasoning displayed on Thursday opened the door to the question, who’s enforcing the Constitution? Congress or the Courts?
Moreover, in asserting that Colorado, in pursuing their interpretation, is “wrong,” a favorite term bandied by the conservative justices, the court cavalierly dismissed the considerable evidence amassed in Colorado’s handling of this case, inferring that another State could come up with a completely different decision, further muddying the evidentiary waters. What Colorado interprets as “insurrection,” might not align with what Michigan or Georgia interprets as “insurrection.”
Bet your bottom dolla’ — to parry the song from “Annie” — there will be more interpretations tomorra’ … come what may!
In one revealing back and forth Justice Kavanaugh questioned Colorado voters’ lawyer Murray if he couldn’t imagine there could be chaos if Trump is ‘disqualified ‘— another favorite term. Murray was asked to conjecture with Kavanaugh what would happen by keeping Trump off the ballot. Presumably, in the legal mind of this Justice there is plenty of room for conjecture and not much else.
Pass the candle and crystal ball.
Kavanaugh was not alone. Alito mentioned the verb ‘imagine,’ five times during a similar give and take. Coney Barrett in a high-pitched snarky tone, also jumped into the conjecture fray. And Gorsuch? Well, he brought home the non sequitur trophy. (2)
The posturing, masquerading as questioning began with Justice Thomas, the senior Justice, who teed up the cherry picking for the other justices to folllow. KBJ, Kagan and Sotomayor attempted to clarify the parties’ arguments, only to be drowned out by their conservative colleagues’ posturing.
As if to answer their own question of who enforces the Constitution, us or Congress — Congress can’t even pass the Voters Right bill — the Court seemed to conclude, what do you want from us?
See ‘ya in November.
February 9
Notes
1-Notably, the 10th Amendment, and by extension voting rights amendments, post-14th.
2- Referencing Justice Neil Gorsuch, who during the proceedings, February 8, called on Attorney Murray, ‘do not hypothesize!,’ which was exactly what Gorsuch was doing.
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