Trump v. Anderson. Rogue Supreme Court. What can be done? Expand the Court.
We are not entirely helpless, though sometimes it feels that way.
The U.S. Supreme Court has decided, in Trump v. Anderson, for all intents and purposes, to write Section 3 of the 14th Amendment out of the Constitution1
In Bush v. Gore (2000), the Court interfered even more egregiously in a presidential contest, in effect awarding the presidency to George W. Bush.
Now it is making decisions that allow Donald Trump to delay his trials.2 It’s decision to overturn the Colorado Supreme Court’s decision barring Trump from the ballot was a lame decision. It was a dishonorable decision. It was a decision viewed by many as that of a corrupt Supreme Court. That of a rogue Supreme Court.
Or, as George Conway suggests in his article in The Atlantic, that of a fearful Supreme Court.3
Particularly significant is the opinion of J. Michael Luttig and Laurence H. Tribe, preeminent Constitutional law experts—conservative and liberal, respectively—in which they concur in the views expressed by Conway and in this column, though they take no position on the issue of expansion of the membership of the Court.4
Particularly disappointing was the fact that the liberal justices of the Court went along with the decision.
The decision may have been based on fear on the part of one or more of the justices. None would want to be, together with their families, targets for MAGA zealots. Violence is in the air. The possibility of fascist violence against the justices or their family members is palpable, and cannot be ruled out.
One may recall reports that some Republican votes in the impeachment trials of Donald Trump were influenced by fears of physical violence.
Colorado erred by not choosing a preeminent Supreme Court advocate to argue its case before the Supreme Court. Such an advocate might have been able to prevent the Court from lurching toward the exit ramp on the specious ground that different state supreme courts might reach different decisions, and one of them might be able to decide who would be the next president of the United States.
But as Convay points out, the Court wanted to reverse the Colotado Supreme Court decision, and the Constitution and the law had little to do with their decision.
Had it wanted to uphold the the Colorado Anderson decision, the Court could have easily set forth uniform standards for the application of Section 3 of the 14th Amendment by state courts, as it had repeatedly done in abortion cases prior to overthrowing Roe v. Wade.
The sad truth is that there were no justices with sufficient courage to take a full-throated position in defense of applying Section 3 as its drafters intended, and as those who voted in state legislatures to ratify the 14th Amendment intended.
It is instructive to take a look at other countries.
Brazil’s Electoral Court has barred former President Jair Bolsonaro from running for office before 2030 because of his commission of electoral crimes.5 This decision is without prejudice to further legal penalties to be assessed against Bolsonaro for other crimes, including leading an insurrection on January 8, 2023.
Which country is the Banana Republic, Brazil or the United States?
The remedy for a rogue Supreme Court like the one we have now in the U.S. is fairly obvious: We must expand the membership of the Court, to either 12 or 15 justices.
Expansion to 15 members could be done in stages.
In the corresponding Supreme Court reform bill, care should be taken to eliminate the role of partisan politics in the selection and confirmation of new justices. A vote of two-thirds or at least 60% of the Senate should be required for confirmation, with no exceptions, and a mechanism to guarantee that a floor vote on any nominee will be held in a timely manner should be enacted.
Supreme Court reform is no longer a matter of purely theoretical concern.
It is now a vital element in efforts to save our democracy.
James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.
See
1)George T. Conway III, “The Court’s Colorado Decision Wasn’t About the Law; This case wasn’t decided on its merits, and the result is an utterly flimsy legal argument, The Atlantic, March 5, 2024 (1:16 pm ET).
2)J. Michael Luttig and Laurence H. Tribe, “Supreme Betrayal: A requiem, The AtlanticMarch14, 2024.
See, e.g,, Thomas B.Edsall, ”This Could Well Be Game Over’New York Times,March 6, 2024.
See note 1, above.
J. Michael Luttig and Laurence H. Tribe, “Supreme Betrayal: A requiem, The Atlantic, March 14, 2024.
Jack Nicas, “Brazil Bars Bolsonaro From Office for Election-Fraud Claims; Brazil’s electoral court banned former President Jair Bolsonaro from seeking office until 2030 for spreading false claims about the nation’s voting system,” New York Times, June 30, 2023.
***
Support the Author
Your author needs your support.
You may sign up for a free subscription. To receive all of the content as soon as it is published and to support the newsletter, please upgrade to a Paid or Founding Member subscription. To do so, click on the “Subscribe now” button below.
Alternatively, you may make a contribution to the author’s Go Fund Me appeal by clicking on the last button below. Go Fund Me does not take 10% as Substack does.