‘Bad sign’: Legal scholars question US Supreme Court’s Trump primary ruling

The court struck down a Colorado effort to keep Trump off the state’s primary ballot for his role in the January 6 riot.

Donald Trump speaks behind a White House podium next to a US flag.
Critics have accused former President Donald Trump of encouraging his supporters to attack the US Capitol on January 6, 2021 [File: Evan Vucci/AP]

Washington, DC – Former United States President Donald Trump hailed it as a victory. His critics blasted it as a blow against accountability.

But experts say the US Supreme Court’s decision to allow Trump to remain on the Colorado primary ballot was always the most likely outcome. The surprise, they argue, lies in the details.

On Monday, the Supreme Court struck down Colorado’s efforts to bar Trump from the state’s Republican presidential primary under the 14th Amendment of the US Constitution.

That amendment contains a so-called “insurrection clause”: a section of the law that disqualifies candidates from public office if they “engaged in insurrection or rebellion” against the US government.

Colorado’s state Supreme Court ruled in December that Trump had run afoul of the insurrection clause by egging on the riot at the US Capitol on January 6, 2021. But in a unanimous ruling, the US Supreme Court deemed the state could not remove Trump from its primary ballot.

Thomas Keck, a professor of political science at Syracuse University, told Al Jazeera that the Colorado case had long faced an uphill battle.

“It was definitely always a long shot and the ruling is not surprising,” Keck explained. But, he added, the US Supreme Court’s ruling opened up larger questions about what guardrails exist to protect US democracy.

“It has been three years [since January 6], and Trump has faced almost zero consequences. That is a bad sign for the health of the country’s democratic institutions,” Keck said.

A divided public reaction

Trump claimed vindication after the ruling, portraying the case as part of a political and legal “witch hunt” aimed at hurting his reelection chances.

His supporters were quick to seize on that narrative in the wake of Monday’s ruling.

In a social media post, Republican Congressman Matt Gaetz called the decision a defeat for “election interference by lawfare”.  Another Republican, Representative William Timmons, hailed it as a “big win for America and a huge loss for Democrats trying to interfere in the election”.

Democrats, meanwhile, reacted with a mixture of outrage and ambivalence, with some questioning the optics of removing Trump from the ballot.

Quentin Fulks, a manager for President Joe Biden’s reelection campaign, responded to the Supreme Court’s decision with indifference. Biden is likely to face Trump again in this year’s general election, after defeating him in the 2020 presidential race.

“We don’t really care,” Fulks said during an interview on MSNBC on Monday.

“It’s not been the way we’ve been planning to beat Donald Trump,” he continued. “Our focus since day one of launching this campaign has been to defeat Donald Trump at the ballot box”.

‘Pretty shocking’

The Colorado case hinged on Trump’s actions in the aftermath of the 2020 election. After Trump’s loss to Biden, a group of his supporters stormed the US Capitol in a violent attempt to overturn his defeat.

Last September, a group of six Colorado voters — with the support of the liberal watchdog group Citizens for Responsibility and Ethics in Washington (CREW) — filed a petition in state court to bar Trump from the ballot on the basis that he played a part in the riot.

Trump has long faced accusations that he spurred on his supporters with false claims that the election had been stolen through large-scale fraud.

In Monday’s ruling, the Supreme Court’s nine justices — six conservative, three left-leaning — unanimously agreed that states could only disqualify those holding or seeking state-level office. The US presidency, they said, was a different matter.

“States have no power under the Constitution to enforce Section 3 [of the 14th Amendment] with respect to federal offices, especially the Presidency,” they wrote.

From there, however, the unanimity ended. In an unsigned majority opinion, five conservative justices argued that, at the federal level, only the US Congress could disqualify an individual from running for office on the grounds of insurrection.

“The Constitution empowers Congress to prescribe how those determinations should be made,” they wrote. “The terms of the Amendment speak only to enforcement by Congress.”

But critics warn that decision — with its emphasis on congressional action — could limit the judicial branch’s power to interpret the 14th Amendment.

Claire Finkelstein, the director of the Center for Ethics and the Rule of Law at the University of Pennsylvania Law School, called the majority’s argument “pretty shocking”.

She explained that, under its logic, the Supreme Court may not be able to disqualify someone like Trump from appearing on a primary ballot, even if he were convicted on federal charges of insurrection.

The court would need “some piece of federal legislation saying that a federal conviction for insurrection should count for purposes of the amendment”, she said.

On Monday, Congressman Jamie Raskin, a Democrat, told the news site Axios he had begun crafting such a bill. But critics point out that such legislation faces long odds, given the broad support Trump enjoys in the Republican Party, which controls the US House of Representatives.

Discord on the bench

Other members of the Supreme Court likewise questioned the scope of the majority’s opinion, warning of a dangerous precedent.

The court’s three liberal justices — Sonia Sotomayor, Ketanji Brown Jackson and Elena Kagan — decried the opinion as overreaching in a joint opinion. They argued it essentially neutered the court’s ability to weigh in on the matter in the future.

“This Court is authorized ‘to say what the law is’,” they wrote. “Today, the Court departs from that vital principle, deciding not just this case but challenges that might arise in the future.”

By placing the matter in Congress’s hands, the three justices argued that the majority had “shut the door on other potential means of federal enforcement”, in order to “insulate” the court “from future controversy”.

“Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President,” they wrote. “We protest the majority’s effort to use this case to define the limits of federal enforcement of that provision.”

A fourth justice, Trump appointee Amy Coney Barrett, authored her own opinion, separate from the majority. She addressed the tense political climate in her response.

“The Court has settled a politically charged issue in the volatile season of a Presidential election,” she wrote.

Still, she too warned that the court’s majority should not “amplify disagreement with stridency”.

“Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” she explained. The Colorado case, she argued, did not require the court “to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced”.

‘Could have defined this moment’

By restoring Trump to Colorado’s ballot, Monday’s ruling may have avoided a political third rail – a controversy that could have ignited further tensions. But Syracuse University’s Keck nevertheless warned that the Supreme Court’s decision sent a wider, more unsettling message about potential impunity for political figures.

Keck said Trump’s legal woes evoke a comparison to the prosecution of Brazil’s former far-right President Jair Bolsonaro, who similarly faces accusations of helping to foment a coup after his electoral defeat in 2022.

Bolsonaro, however, has since been barred from holding public office until 2030.

“Contrast this with a country like Brazil, which has taken swift action against political figures who have abused their power to try and stay in office despite losing an election,” Keck said.

Finkelstein also told Al Jazeera that Monday’s decision was a missed opportunity to make a “very clear values statement for the country”. She pointed out that the justices avoided weighing in on whether Trump bore responsibility for the Capitol attack.

“It could have defined this moment of January 6, 2021, as an insurrection and Trump’s involvement in it,” she said.

Source: Al Jazeera