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(51,034 posts)
Fri Feb 9, 2024, 01:33 AM Feb 9

The Supreme Court Sure Picked a Curious Moment to Embrace Humility [View all]


It is only going to be a little bit galling when the Supreme Court, in a unanimous or near-unanimous vote, determines in a few weeks that states may not disqualify insurrectionist presidents from the ballot, because doing so would unleash mayhem—or, as Donald Trump’s lawyer promises, “chaos and bedlam”—that the nation cannot afford. During oral arguments Thursday in Trump v. Anderson, the long-awaited ballot disqualification case, almost all the justices centered their worries less on text and history than on the chilling prospect of, as Chief Justice John Roberts put it, the “plain consequences” of greenlighting a regime in which “a goodly number of states will say, whoever the democratic candidate is, ‘you’re off the ballot.’” Roberts fretted that “it’ll come down to just a handful of states that are going to decide the presidential election,” as if rogue states were not currently dictating outcomes for the rest of the country already. “That,” he added “is a pretty daunting consequence.”

Call it judicial cowardice or call it long-lost judicial humility, but the consensus view among the justices was that a lack of uniformity, coherence, and certainty—as well the fear of vexatious acts and petty mischief— precluded the court from allowing the words of the 14th Amendment’s Section 3 to mean what they say. Historians have fallen over themselves to show that, yes, Section 3 bars insurrectionists from the White House, up to and including Trump. Yet the justices seemed terrified that disqualifying him from the ballot could unleash chaos in future elections.

Really? That’s the off-ramp? This Supreme Court has evinced not a scintilla of concern for the real impacts of its gun decisions, voting rights decisions, or abortion decisions on real people. The fact that the justices are suddenly profoundly worried about the consequences of this case serves as a reminder that when the real world impacts might be experienced by the justices themselves, or when they are simply too unpredictable to contemplate, it’s time to take them very seriously. When it’s literal deaths—like victims of gun violence or abortion bans—or a massive aggrandizement of judicial power—like subjecting every federal regulation or gun law to close scrutiny—well, if history demands it, so be it. But when it’s the possibility of different names on different ballots, or the court having to adjudicate what is and isn’t an insurrection, good history is irrelevant, and the need for “uniformity” rules the day.

Start with the chief justice. It could make you cry, the absolute gall of Roberts to offer up a vociferous cheer for federal and congressional power in enforcing the 14th Amendment—after making it his life’s work to dismantle the Voting Rights Act in the name of states’ “dignity.” So could energetic efforts by other conservatives, most notably Justice Brett Kavanaugh, to frame a ruling for Trump as a victory for democracy. In considering the case, Kavanaugh asserted, the court “should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide.” Enforcing Section 3 against Trump, the justice cautioned, “has the effect of disenfranchising voters to a significant degree.” Who would have thought that Kavanaugh, who spent the run-up to the 2020 election upholding voter suppression laws, would emerge as a great defender of judicial deference to democracy? Or is “democracy” only imperiled when a state is threatening to take Trump off the ballot?

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