Thoughts in reading today’s opinion in Trump v. Anderson

 

“What it does today, the Court should have left undone.”

              -Concurring opinion of Justices Sotomayor, Kagan, Jackson

The general principle is that a court can only decide the case before it and once it has done so it should not go further and give what amount to advisory opinions on future possible controversies.  Yet that is exactly what the Supreme Court per curium opinion does in Trump v. Anderson.   While the Justices unanimously agreed that the federal government rather than a state must decide the question of disqualification for federal office under Section 3 of the Fourteenth Amendment, four Justices disagreed with the remainder of the majority opinion.

Opening of 20 page Opinion

The unanimous Court decided that Colorado, a state, did not have the authority to remove Donald Trump’s name from the 2024 presidential primary ballot in Colorado pursuant to section 3.  At that point the case was decided and the Court should have stopped.  But the majority went on and the remainder of their opinion, which I believe in the end is nothing more than dicta, is incredibly damaging to the Constitution and to the federal-state relationship.

First, let me briefly comment on the unanimous part of the decision.  The Court concludes that “States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”  I do not happen to think that the Court’s legal reasoning is strong here. The Court seems to pull simply this piece and that piece of the Constitution almost out of context to attempt to present what appears to be a strong logical argument to support the conclusion but which is really, it seems, based on the simple fact that the Supreme Court doesn’t want the Colorado court to decide this because of the chaos it might create.  But, strong or not, this is the Court’s decision and the result is that Trump will appear on the ballot.

And we could all stop there.  Happy or not with that decision, it is the decision of the Court and we could and should move on.

But the Court does not move on.   Instead, it addresses issues and questions that are not before it and which it has no business deciding as a part of this case.  

As Justice Barrett stated in her concurring opinion: “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.”  She further points out that this was a state case brought by Colorado voters under Colorado law and did not require the Court to address questions of federal legislation related to Section 3.  Yet the Court’s opinion did just that.

The Court decided that a Section 3 disqualification can only occur when a particular type of legislation is enacted by Congress.  As Justices Sotomayor, Kagan, and Jackson point out in their concurrence, the Court has not only shut the door to any potential other means of federal enforcement of section 3, it also insulates petitioner Trump from future controversy – controversy not currently before the court – over this question.

Perhaps ironically, this decision which diminishes state authority while broadening federal legislative authority will likely be most favorably received by Trump supporters who typically demand broad state rights and limited federal authority.  Similarly, this opinion reflects a very activist court, something that Trump supporters generally abhor.

The Court’s opinion that federal disqualification requires legislation,  as the concurring opinion of Justices  Sotomayor, Kagan, and Jackson makes clear,  is not supported by the text of Section 3 or the rest of the Fourteenth Amendment.  As that opinion suggests, the Court simply created a special rule for insurrection disability out of thin air.  And, it had absolutely no need to do so, no need to even address this issue, when the entire Court had already agreed and decided that Colorado could not remove Trump’s name from the ballot. That unanimous opinion effectively decided and ended this case.

Not only must a Court decide the case before it, it also can only decide the case before it.  It should not opine or speculate on future cases.  While the Court may have thought that by doing so it would lead to some sort of healing to the political discord in this country, what it did was nothing less than weaken our justice system and its rule of law.  It lessened the command of the respect that the Supreme Court should be given for its ability to deeply understand and reason about constitutional questions placed before it.  And, as the concurring Justices noted, “By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.” 

By going beyond this case and addressing constitutional issues not before it, the Court created far reaching and likely unforeseen possibilities and consequences that go well beyond the simple question of whether Colorado could or could not remove Trump’s name from the ballot.  This is not a good thing for this country, and I am disappointed with the majority for its lack of wisdom here.