Prof. Laurence Tribe of Harvard Law
The U.S. Supreme Court today ruled that Colorado cannot remove Donald Trump from the 2024 presidential ballot even though the high court made no finding that Trump did not engage in an insurrection on Jan. 6, 2021. In essence, SCOTUS found that it's OK for an insurrectionist to lead the government he sought to obstruct or overthrow -- even though Section 3, 14th Amendment of the U.S. Constitution says that cannot happen.
Does that smell fishy to you? It does to me. More importantly, it apparently smells fishy to Laurence Tribe, the Harvard Law prof I consider to be our foremost Constitutional scholar. Tribe is a gentleman who has a far greater intellect, with way more honesty, than any of the right-wing hacks who populate our current Supreme Court. When Laurence Tribe speaks, I listen -- and I encourage our readers to do the same by following him at X (fomerly Twitter) to keep up with his insights in the coming days.
For my part, I intend to thoroughly research issues raised in the Trump appeal and report my findings in a series of upcoming posts. We already have written two pieces (here and here) that SCOTUS was taking dubious actions in the Trump appeal It's possible we will find SCOTUS got this one right, but I doubt it. Either way, I want to know what this court, which clearly has been favoring Trump for months, has wrought
Here is Laurence Tribe's initial reaction to today's ruling:
Justice Barrett told us what “message Americans should take home” from today’s ruling that, even if Trump’s role in the insurrection we just barely survived disqualifies him under the Constitution from ever holding office again, only congressional legislation under Sec 5 of the 14th Amendment can implement that absolutely vital ban. The message Barrett tells us to “take home” from that fiat is that we should just chill because all 9 justices agreed that Colorado overstepped what any one state should’ve been able to do. I’ll discuss that point later, but for now I’d stress what Justices Sotomayor, Kagan, and Jackson rightly reminded Justice Barrett and Chief Justice Roberts about: as Roberts rightly wrote in Dobbs, the Court should avoid deciding any more than it needs to decide when ruling on a case. To reach out and resolve in advance all sorts of issues that might arise in the future is to take on the role of a super-legislature, not a court of law.
Here is more from Laurence Tribe:
It’s staggering that not one of the 9 justices said a word to support Trump’s claims that trying to overturn Biden’s 2020 election wasn’t an “insurrection,” that anyway he didn’t “engage” in it, and that as president he was exempt from Sec 3’s disqualification from future office!
We have more of Laurence Tribe's insights from later in the day:
Justices Sotomayor, Kagan and Jackson were right to protest the majority’s choice to go far “beyond the necessities of [Colorado’s] case to limit how Section 3 can bar an oath-breaking insurrectionist from becoming President.” There was virtually “no support for [the majority’s] requirement that [such] disqualification can occur only pursuant to legislation enacted [by Congress] for that purpose.”
Here is a final thought, for now, from Laurence Tribe:
I had predicted that requiring congressional enforcement was the likely off-ramp & SCOTUS took it But don’t overlook the other major headline: they had the chance to repudiate the finding that Trump was an insurrectionist They didn’t!