Laurence H. Tribe, the eminent professor of constitutional law at Harvard Law School (Democrat), and Judge Michael Luttig, a retired federal judge (Republican), co-authored a lengthy article in The Atlantic, condemning the U.S. Supreme Court’s decision to overrule the Colorado Supreme Court, which removed Trump from the 2024 ballot.
It seemed, after the Court’s decision, that Section 3 of the Fourteenth Amendnent had been excised from the Constitution. But just yesterday the Supreme Court rejected an appeal by a New Mexico man who was convicted for taking part in the January 6 insurrection.
Couy Griffin was convicted for his role as a member of the mob that stormed the U.S. Capitol. Because he previously served as a member of the Otero County board of commissioners, the courts in New Mexico said he was ineligible to hold office ever again. Griffin was a founder of Cowboys for Trump and an outspoken purveyor of lies about election fraud.
The Supreme Court concluded that states could disqualify persons from attempting to hold state offices, but Congress had to enact legislation to implement the disqualification of federal officials.
Since Congress is unlikely to muster a majority of both Houses—or 60 votes in the Senate to avoid a filibuster—oath-breaking insurrectionists will not be barred from seeking or holding federal offices.
One good thing: the Griffin decision implicitly agreed that the mob action of January 6 was an insurrection.
Last week, before the Griffin decision, Tribe and Littig wrote in The Atlantic:
The Supreme Court of the United States did a grave disservice to both the Constitution and the nation in Trump v. Anderson.
In a stunning disfigurement of the Fourteenth Amendment, the Court impressed upon it an ahistorical misinterpretation that defies both its plain text and its original meaning. Despite disagreement within the Court that led to a 5–4 split among the justices over momentous but tangential issues that it had no need to reach in order to resolve the controversy before it, the Court was disappointingly unanimous in permitting oath-breaking insurrectionists, including former President Donald Trump, to return to power. In doing so, all nine justices denied “We the People” the very power that those who wrote and ratified the Fourteenth Amendment presciently secured to us to save the republic from future insurrectionists—reflecting a lesson hard-learned from the devastation wrought by the Civil War.
For a century and a half before the Court’s decision, Section 3 of the Fourteenth Amendment was the Constitution’s safety net for America’s democracy, promising to automatically disqualify from public office all oath-breaking insurrectionists against the Constitution, deeming them too dangerous to entrust with power unless supermajorities of both houses of Congress formally remove their disability. This provision has been mistakenly described by some as “undemocratic” because it limits who may be elected to particular positions of power. But disqualification is not what is antidemocratic; rather, it is the insurrection that is antidemocratic, as the Constitution emphatically tells us.
In any event, all qualifications for office set by the Constitution limit who may be elected to particular positions of power. And no other of these disqualifications requires congressional legislation to become operative, as the Court now insists this one does. To be sure, the other qualifications—age, residence, natural-born citizenship—appear outside the Fourteenth Amendment, whose fifth section specifically makes congressional action to enforce its provisions available. But no such action is needed to enforce the rights secured to individuals by Section 1 of the same amendment, so deeming congressional action necessary to enforce Section 3 creates a constitutional anomaly in this case that the majority could not and did not explain. For that matter, no other provision of the other two Reconstruction amendments requires congressional enforcement either. As the concurring justices explained, the majority “simply [created] a special rule for the insurrection disability in Section 3.”
To read the rest of this brilliant article, open the link or subscribe to The Atlantic.
Thanks for sharing this. The Amendment is clear enough, and the court invented law out of thin air that was a) not justified by the Constitution and b) not justified by original intent. The current court is made up of partisan political hacks who serve the “Just Us” system.
Precisely, only with a rightward polar tilt. See my comments below.
it is actually pretty simple. If the mob that entered the capital on the advice of a person on the outside of the American economy, he and all his adherents would have been imprisoned within a fortnight.
Nowhere is the rightward tilt of American history more evident than in this decision, wherein the insurrection follower was subject to the law, and the leader is allowed to be free. This is not justice based on economic power, but it is evident that right wing threats are not taken seriously. A few of the right wing might be held to the law, but there is no pervasive fear mongering and mass arrests like there were when peaceful civil rights activists were put in jail or when A Mitchell Palmer arrested “suspected anarchists” in his 1919 response to violent activity by some on the left.
Who needs more evidence of a rightward tilt of the American political globe?
The conservative majority on SCOTUS has developed a new tactic, MSU, (Making Stuff Up). We saw it in the case of the wedding website planner, who had never planned a wedding; in the case of the coach who only wanted a private moment of prayer – on the football field surrounded by hundreds; and on student loan forgiveness where the “injured” party had suffered no injury.
The court ought to have stopped at 50 states each with its differing requirements are too much to forge one rule – but it went on to make a ruling beyond the case argued in front of it.
Well said, Christine.
This was a 9-0 decision. Not a conservative majority decision
Yes, true on the basic case. But read the dissents (though they aren’t called such) from Kagan, Sotomayor, Jackson and, even, Barrett.
In their incandescent opinion, the liberal justices walk right up to the line of accusing the majority of doing a special favor for Trump. They are right to do so, and they would have been justified to cross it. The majority had no reason to nullify the insurrection clause other than an obvious desire to ensure that no other federal candidates are nixed from the ballot because of their participation in Jan. 6. An optimist might say that by doing so, the majority was just trying to inject stability into the upcoming election. But close court-watchers know that every time this Supreme Court waves the flag of stability, it does so on behalf of Trump and his allies. Anderson’s bottom-line outcome is certainly defensible. But the rest of it serves as an unwarranted gift to Donald Trump and the oathbreakers who violently assisted his efforts to overturn a free and fair election.
https://slate.com/news-and-politics/2024/03/supreme-court-trump-colorado-ballot-disaster.html
The basic case was the big deal. That’s the one Luttig and Tribe are torching the court over. They aren’t torching the conservative majority. They’re torching them all.
I’m just pointing to the conservative majority’s penchant for making up stuff to reach a conclusion not based on the question before them. In this case, no one asked them to send a mandate that Congress make and pass a law to keep insurrectionists off the ballot. They weren’t asked to decide if Section 3 is or is not self executable, yet they did.
I remember when this case was being briefed, there was an avalanche of comments here about how the Colorado Supreme Court was so obviously correct, and that the only way it would be reversed is because the 6 conservatives on the Court would put politics over the correct legal outcome. I wrote, eh, I don’t know, I think this has a chance of not only being reversed, but being reversed by a unanimous vote. Couple months later, it gets reversed by a unanimous vote, and a wrinkle that zero observers ever considered previously produces a concurring opinion (it wasn’t a dissent) that the 3 “liberal” justices sign onto. And suddenly the popular reaction on the left is “those damn conservative justices!”
Also, the Court was asked to decide whether Section 3 was self-executing. What they weren’t asked to do is, in the event the Court decided it wasn’t self-executing, decide how it can and must be enforced.
FLERP, I agree with Laurence Tribe. SCOTUS excised Section 3 of the 14th. Congress will never write implementing procedures. They are too divided. So section 3 applies only to states. But the language says FEDERAL AND STATE. The authors of the language were especially eager to prevent Jefferson Davis from becoming president. Too bad they didn’t add instructions.
I get that argument, Diane. But I guess I’m the only one on the planet who thinks this stuff is not that simple. I heard a lot of persuasive arguments on both sides at that oral argument
From FLERP!:
Also, the Court was asked to decide whether Section 3 was self-executing. What they weren’t asked to do is, in the event the Court decided it wasn’t self-executing, decide how it can and must be enforced.
That’s true; I was wrong.
No worries, and please excuse my little rant, Christine.
My point is simply this: Sonya Sotomayor, the darling of the Democratic left, voted to tank the Colorado Supreme Court’s decision and to keep Trump on the ballot. Nobody forced her to do that. She did that because that’s what she wanted to do. But because apparently she (and Kagan and Jackson) simply *must* always be considered to be in the right and on the right side of justice, we have a narrative about how brave her concurring opinion is, because *of course* all sensible Democrats now suddenly agree that while Section 3 may not be self-executing, it would be *totally irresponsible* to decide what bodies have the power to enforce it because deciding that question wasn’t necessary to the majority’s holding.
Watching consensus get manufactured in real time makes my head spin.
Sonya Sotomayor is the darling of the Democratic left? I didn’t know that was a fact.
I don’t understand – is flerp!’s point that he agrees that the 9 Justices of the Supreme Court decided correctly, and Laurence Tribe and Michael Luttig don’t doesn’t know what they are talking about?
Many of us agreed with Tribe and Luttig. And many of us ALSO believe that if the liberal justices had a 6-3 or 5-4 majority as they would have if the election of 2016 had a different outcome, that the 3 liberal justices would not have decided this way.
I don’t understand why there is not a recognition that the 9-0 decision was because the 3 justices were concerned about the timing in this specific case, and it was not a rejection of states doing this.
You are correct that you don’t understand.
NYC, this is an example of a comment where you can state what you believe without referring to the name of another commenter.
Apologies, Diane. I should have been clear that I wanted to understand what someone else here was saying.
I want to understand the comment: “Watching consensus get manufactured in real time makes my head spin”.
Diane, is it okay to ask if you or someone who isn’t the original commenter can explain what that means? Is it a reference to folks here demonstrating manufactured consensus?
I don’t understand what consensus is being manufactured here. And I am not being snarky — I just do not understand what consensus is being manufactured “in real time” that would make someone’s head spin.
I am totally open to that being true, and if it is true, then it is wrong that some of us are doing that, and we should stop doing that.
It’s ok if you don’t understand what I meant. Not everyone needs to understand everything that everybody says.
I am trying to wrap my head around someone who replies to a question to inform me that they are not going to reply to a question.
Can anyone else explain what this means:
“Watching consensus get manufactured in real time makes my head spin”
Who is guilty of manufacturing consensus here? Or is it a reference to some of us (Diane Ravitch?) getting fooled by an outsider (Tribe and Luttig?) into consensus with something false?
Apparently I am the only person who doesn’t understand the obvious meaning of this sentence, so I hope someone else will be kind enough to enlighten me.
Or am I not even permitted to ask that question? That seems wrong for a blog that is about bringing light to issues.
I have never once been rewarded for attempting to answer one of your questions. What are the odds this is the first time?
John Cage: 4’33” (youtube.com)
I can’t wrap my head around multiple non-replies blaming me for their having to reply with a non-reply! Talk about gaslighting! Especially when I made it clear I was addressing OTHER people.
Can anyone else enlighten me as to what this refers to in the context of this discussion?
“Watching consensus get manufactured in real time makes my head spin”
Who is manufacturing consensus in real time, in this sentence?
Why do you care so much about the things I write? I rarely understand what you’re talking about but I don’t go wandering around the comment section asking if anyone can explain it. Because I don’t care. Just like nobody else cares very much about what I was saying. Just you.
Please let it go. No one wants to read these exchanges.
Sorry, it’s just so weird.
Am I not even permitted to ask that question? That seems wrong for a blog that is about bringing light to issues.
Diane Ravitch,
Can you really not see the gaslighting here? Three comments that do nothing but insult me for asking a reasonable question.
I read comments – whether they are from people I agree with or disagree with – and try to understand the point of view being expressed. I have tried to be careful not to insult or even directly address this person, but I don’t believe I should be attacked for politely asking what a comment that seems to be either insulting or maybe has something important to say means.
Why is it that I can interact with Linda or bethree5 or CBK or many others here without being constantly gaslighted?
We can all ignore comments we don’t want to answer, there is no excuse for simply writing a snarky and insulting reply because you have no intention of answering but want to change the subject.
“Watching consensus get manufactured in real time makes my head spin.”
Diane, am I really now censored for asking what that sentence means? Because if it is so clear to everyone else, I wish someone would simply explain it.
NYCPSP,
You have never been censored.
I’m just trying to maintain civility.
Earth to the left-wing bubble: the SCOTUS decision was 9-0. It was not a partisan decision as Diane Ravitch predicted would happen.
Sanity Bubble to Alternative Facts Earth: insurrectionists are barred by the Constitution from holding office.
Correct me if I am wrong, but aren’t both these decisions unanimous? Are all decisions to allow a lower court ruling to stand 9-0?
What do you mean by “both these decisions”? I thought this was a discussion about the Colorado case.
Appellate courts can affirm the rulings of lower courts unanimously or by majority.
Colorado case was heard and decided. The case described above was not heard concerning the guy who was convicted of breaching the capital and then removed from the ballot
Oh, sorry, I missed that. Not really fair to say a refusal to take up a case is 9-0, because you need 4 votes to take up the case. So it could be anything between 6-3 and 9-0.
thanks. I did not know the process
SCOTUS is a political body and each member “reads” the Constitution as they please, law professors, in the must prestigious law schools, can criticize SCOTUS members as much as they choose, the “nine wise men(and women)” can and do dramatically change interpretations of the the Constitution, the erudite law professors may have to change their lesson plans. Elections have consequences
It isn’t the case, ofc, that all readings are created equal. There are rational and just readings and irrational and unjust ones. That’s the whole point, ofc, of the interchange between Alice and Humpty Dumpty.
Facebook
Justice Breyer New Book. Sounds the Alarm Over the Supreme Court’s Direction.
Reading the Constitution: Why I Chose Pragmatism, Not Textualism, will be published on March 26/2024.
The book is a sustained critique of the current court’s approach to the law, one that he said fetishizes the texts of statutes and the Constitution, reading them woodenly, without a common-sense appreciation of their purpose and consequences.
https://www.nytimes.com/2024/03/18/us/breyer-supreme-court-interview.html?smid=nytcore-ios-share&referringSource=articleShare
Kathy,
It’s interesting that SCOTUS abandoned “textualism” or “originalism” when it required them to disqualify Trump. Suddenly the Court became pragmatic.
Notes from Health and Wellness Guru Dufus Trump
Mindfulness. Don’t be one of those people who misses the color purple in a field. Remember that purple and pink are the colors of, you know, THOSE people, not that I have anything against them. Nobody’s done as much for them as Trump. They love Trump. What I mean is you need to stay awake but not woke to the opportunities all around you for building bile and venom and a head of steam to carry you through until the next snort of Adderall.
Nutrition. Did you know that cheeseburgers have all the essential fats and salt and then some? How do you think I keep this fine physique? I know. You want some of this, don’t you? Go ahead, admit it. Everybody feels the same way.
A rich inner life. Did I tell you I’m rich? I mean like, really, really, really rich. I started with a small loan from my Daddy of only three quarters of a billion dollars and all by myself built that into bankruptcy and inability to pay judgments against me. But that’s not what I’m talking about. I’m talking about maintaining a rich INNER life, which I do by fantasizing about bloodbaths and being dictator on Day 1 and “dating” my daughter.
Friendship. Remember, no man is an island. We are all surrounded by Marxists and Late Night Talk Show hosts. That’s why you have to have barriers, you know, like admissions fees at Mar-a-lago or pay-to-play at the White House. So, given that, how do you know who your real friends are? Well, in the best cases, they give you money in exchange for favors. You know, like the ex-KGB guys with all the dough who work for Putin or like the fat cats who purchased Clarence Thomas. Speaking of which, what’s with that Zelensky guy? All I asked was for him to open an investigation into Hunter. Then we could be friends. And then there are the friends that you buy or that are really, really afraid of you because the Russians gave you the goods on them. And those you don’t have to worry about. You can make roadkill of them whenever you want. Come to think of it, that’s true of everyone, if you have the power to do it.
Healthy hobbies and exercise. Three words. Cheat at golf. Great for your self esteem! Watching your insurrection on TV and doing the little fist pump waddle dance is also good. The Supreme Court–those friends you bought–will let you get away with it.
Bob, I love this!!!
MSNBC had a story about Trump’s love affair with asbestos back in the ’90s. As a landlord he simply did not want to be required to remove it because it is expensive to do. The whole family is opportunistic. I read today that Kushner is eyeing Gaza’s waterfront property.
You man Kuschner the slum landlord? Kuschner, the guy who reportedly advised Donnie to play down COVID so as not to hurt his reelection chances, thus leading to the unnecessary deaths of hundreds of thousands of Americans? Kuschner, the guy whom the Saudis have 2 billion dollars? Hard to imagine that such a morally upright fellow would act opportunistically.
A condo owner in Trump Tower died of smoke inhalation in his apartment because when it was built, Trump did not install smoke detectors.
I get that argument, Diane. But I guess I’m the only one on the planet who thinks this stuff is not that simple. I heard a lot of persuasive arguments on both sides at that argument.
Oops wrong spot
FLERP,
I, too, remember this blog’s host and almost all commenters saying this was an open and shut case that only the conservative justices would thwart. That preferred narrative was wrong, but no one here is willing to admit they were wrong.
Kathy, you are wrong. Rule #1 of civil discourse: no making up your own alternative facts.
I don’t recall ever writing that only conservative justices would thwart the presence of an oath-breaking insurrectionist as a presidential candidate. Please point to a post where I said that.
Here is what I wrote:
On January 4, I wrote that the Supreme Court should not kick Trump off the ballot because he should be beaten by the voters.
After reading comments from incredibly intelligent readers, I changed my mind and expressed my hope that the Court would apply the Constitution and declare him ineligible to run:
In neither of these posts did I write that only conservative justices would defend the oath-breaking insurrectionist.
If I did so in a different post, please let me know.
Otherwise I assume you are a Trumper trying to score points on behalf of The Idiot.
SCOTUS backs Texas over Feds at the border; no paywall. Folks, we’re in a world of trouble.
https://wapo.st/43mbaEF
Insane. And this will be a humanitarian catstrophe.
Agree. Another example of how the right wing Supreme Court abandons text, original intent, and any judicial philosophy beyond “what helps empower the right wing Republicans and those who underwrite our lifestyles”.
The problem is that the false narrative that there is some legitimate judicial philosophy behind the right wing’s attempts to undo democracy via the Supreme Court gives legitimacy to decisions that a few decades ago would have caused outrage. The Supreme Court acting to thwart democracy is now normalized under the guise of “they are just following a legitimate judicial philosophy.”
Imagine all these decisions being covered WITHOUT any mention of there being a judicial philosophy behind it.
In other words, the true narrative is that the right wing Supreme Court wants a Christian right country and their decisions will always reflect that desire, period. There is no judicial philosophy behind it, period, and until the media stops pretending there is, our democracy is in grave danger.
Christine, this decision is the first in over 100 years to claim that state law overrides federal law at international borders. It’s shocking.
Nailed it, Diane. Far from being originalist, this is an extremist rightwing activist court making law in direct contradiction of the Constitution and of all precedent.
I’ve got whiplash:
https://www.washingtonpost.com/politics/2024/03/19/supreme-court-texas-immigration-law/
The Government of Mexico denounced the Supreme Court decision on Texas’ SB4.
Luttig and Tribe have given a magnificent and thorough analysis of the culpably misguided Supreme Court decision. Let’s trust that Luttig’s and Tribe’s words on the anti-insurrectionist clause will stand, and be read by future generations, when the muddled “interpretation” by the politicized, weaponized SCOTUS is reversed and shoved into the historical dustbin. The entire Atlantic article should indeed be read.
Tgoff, I took your advice on Tribe and Luttig.
I don’t know who titled the piece by Luttig and Tribe in The Atlantic, but I thought it was both brilliant and accurate. The title:
“Supreme Betrayal”
These are some of the most compelling passages in the article:
“What ought to have been, as a matter of the Constitution’s design and purpose, the climax of the struggle for the survival of America’s democracy and the rule of law instead turned out to be its nadir, delivered by a Court unwilling to perform its duty to interpret the Constitution as written. Desperate to assuage the growing sense that it is but a political instrument, the Court instead cemented that image into history. It did so at what could be the most perilous constitutional and political moment in our country’s history, when the nation and the Constitution needed the Court most—to adjudicate not the politics of law, but the law of the politics that is poisoning the lifeblood of America.”
Bam!
“As the extraordinary array of amicus briefs filed in Trump v. Anderson made clear, the voluminous historical scholarship exploring the origins of the disqualification clause and its intended operation left no genuine doubt that the Colorado Supreme Court got it exactly right in its decision explaining why the former president was ineligible to ‘hold any office, civil or military, under the United States,’ certainly including the presidency.
The Colorado Supreme Court entered into some extensive fact-finding in declaring Trump an insurrectionist. None of those facts has been questioned, even at the Supreme Court, where the justices just tiptoed around the factual issues and pretended they didn’t exist. Oh, but they did:
https://www.usatoday.com/picture-gallery/news/nation/2021/01/07/front-pages-capture-chaos-riots-us-capitol/6577931002/
Back to Luttig and Tribe, and the three “liberal” justices:
“For Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—who wrote a separate concurrence that in parts read more like a dissent—we can only surmise that any discomfort they felt was outweighed by the extra-constitutional allure of going along with the other justices on the decision’s bottom line and thus enabling the nation’s electorate to work its will, rather than the Constitution’s. Those three justices took the opportunity to distance themselves from at least part of what the Court’s majority did by criticizing its ‘attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.’ Sotomayor, Kagan, and Jackson convincingly dispatched as ‘inadequately supported as they are gratuitous’ the majority’s unnecessary holdings that only Congress can enforce the disqualification clause and that Congress’s implementing legislation must satisfy the majority’s made-up insistence upon ‘congruence and proportionality.’ Those three justices left in tatters much that all the other justices, with the exception of Amy Coney Barrett, wrote about the operation of the disqualification clause against federal officeholders, making plain that the majority’s ‘musings’ simply cannot be reconciled with the Fourteenth Amendment’s language, structure, and history.”
Luttig and Tribe note clearly that there were two “majorities” in this case. There was the 9-0 majority, that some commenters here cling to, and there was the 5-4 majority that went w-a-y too far in insulating Trump from disqualification even though he IS an insurrectionist. And that 9-0 majority? Luttig and Tribe state that the step “that all nine justices took represents a constitutionally unforgivable departure from the fundamental truth of our republic that ‘no man is above the law.’ ”
And that Colorado decision?
“… the week-long trial by the Colorado state court, which had indisputable jurisdiction to consider the matter, undoubtedly more than satisfied the constitutional requirements for disqualifying the former president under Section 3. At that trial, he was afforded every opportunity to defend himself against the charge that he had personally ‘engaged’ in an ‘insurrection or rebellion’ against the Constitution. Not a single justice suggested that the process was less than what the former president was due. That trial ended in a finding by ‘clear and convincing evidence’ that he had not only engaged in that insurrection but had orchestrated the entire months-long effort to obstruct the joint session’s official proceeding, preventing the peaceful transfer of power for the first time in American history. Not a single justice suggested that a more stringent standard of proof was required or that the courts below applied an insufficiently rigorous definition of insurrection. No justice suggested that the First Amendment or anything else in the Constitution shielded the former president from the reach of Section 3.”
And yet they shielded him.
Luttig and Tribe conclude with this:
“Our highest court dramatically and dangerously betrayed its obligation to enforce what once was the Constitution’s safety net for America’s democracy. The Supreme Court has now rendered that safety net a dead letter, effectively rescinding it as if it had never been enacted.”
I’m curious. Is there anyone commenting on this blog who genuinely believe that Trump is NOT an insurrectionist?
Brilliant, Democracy!
After reading all this strand again this morning and the distillation above, I wonder if the 4 justices who wrote “dissents” were trying to push Congress to declare Trump an insurrection leader. After January 6, they had an opportunity to do this, and they whiffed. I wonder if some of the comments were meant to chide Congress for what they did not do Or opaquely suggest they do it again.
The court’s avoidance of the question of whether he actually was guilty of insurrection is a fascinating omission. It takes yet another step in the direction of undermining the already shaky support our three governing bodies have in a body politic.
For years, Supreme Court justices were balanced assessors of law. Then the Bork hearing held back a rising tide for a bit. Since Bush II, Republicans have offered judges with philosophical radicalism that now threatens to undermine faith in our institutions.
God save us.
The court’s avoidance of the question of whether he actually was guilty of insurrection leaves standing the lower court’s ruling that Trump was in fact an insurrection leader.
Yeah but that’s meaningless. Or, that lower court finding plus four dollars can get you a cup of coffee.
I think it makes for good campaign fodder.
Many observers concluded that the Court’s refusal to hear the case of the New Mexico cowboy who could not run for election because participated in the insurrection was a tacit admission that Jan 6 was an insurrection.