The Supreme Court’s Gift To Donald Trump

Mehdi's Monday Memo

(Photo by OLIVIER DOULIERY/AFP via Getty Images)

9-0.

That was the unanimous decision of the United States Supreme Court on Monday 4th March morning, reversing an earlier earth-shaking Colorado Supreme Court ruling that had disqualified Donald Trump from appearing on the ballot in the Centennial State. The verdict from the highest court in the land followed months of intense argument and debate, between elected politicians, election officials, and constitutional scholars, over whether the former president had violated the “insurrectionist clause” included in the 14th Amendment - and whether a single state could choose to enforce it.

Despite the clear and plain language of Section 3 of that amendment, which says “no person shall…hold any office, civil or military” who “engaged in insurrection or rebellion” against the Constitution, the Court declared that “the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates.” Interestingly, the Court chose not to exonerate Trump from the charge of insurrection. 

Nevertheless, today’s unsigned ruling is a momentous and, let’s not mince any words, pro-Trump ruling. “The U.S. Supreme Court handed Donald Trump a major victory,” declared Reuters.  “A massive victory for Trump,” agreed CNN. Or as Trump himself bragged on his social media site: “BIG WIN FOR AMERICA!!!”

That the three liberal justices signed on to the court’s decision is beyond disappointing. This is a decision that says a state cannot prevent a candidate from appearing on the presidential ballot by citing Section 3 because that would “create a chaotic state-by-state patchwork, at odds with our nation’s federalism principles.”

It is a maddening, infuriating, dangerous decision. 

First, as Erwin Chemerinsky, dean of the UC Berkeley School of Law, has observed, “every case must begin in one state. Ultimately this is not a question of one state deciding so much as it is the United States Supreme Court looking at the facts and law - as courts always do - and deciding whether Section 3 disqualifies Trump.”

Second, do the justices want us to believe that they are concerned about creating a “state-by-state patchwork”? Are you kidding me? What was the Dobbs decision, which dismantled a decades-old constitutional right to abortion in 2022, other than an explicit endorsement of a “state-by-state patchwork”? Within a year of Dobbs, 24 states had restricted access to abortion, while 18 states had moved to protect the right and access to abortion. 

“States’ rights!” scream conservatives - except Colorado! Except on this one issue!

Third, do the justices seriously want us to believe that they were concerned about the possibility of chaos should a single state like Colorado be allowed to keep an insurrectionist off the ballot? How about the chaos Trump caused on January 6th, 2021, which led to an unprecedented armed attack on our nation’s Capitol, including multiple deaths and hundreds of injured police officers? How about the chaos that Trump will cause in November if he is defeated and - once again - refuses to accept his defeat?  (It is worth noting that in a brand-new interview with the New Yorker, Joe Biden says he believes Trump will “contest” the result of the next election: “Losers who are losers are never graceful.”)

Those who say that the American people, and not nine Supreme Court justices, should decide Donald Trump’s political fate are missing the point. The voters did decide. In November 2020. Biden defeated Trump by a margin of seven million votes. He won the electoral college 306 to 232.  And what did Trump do? He mounted a coup attempt to try and stay in office and, when that failed, he incited an insurrection at the Capitol that almost killed the Vice-President of the United States and the Speaker of the House.

That is why a group of Colorado voters went to court in the first place and cited the insurrectionist clause of the 14th Amendment. That is why multiple conservative legal scholars have made the case for excluding Trump from the ballot. In fact, the most sweeping case for deploying Section 3 of the 14th Amendment against the former Republican president came from two very prominent conservative scholars - members of the right-wing Federalist Society no less! - in an essay for The University of Pennsylvania Law Review. 

And the most compelling case for why Section 3 is “self-executing,” which means “congressional action is not required,” has come from former U.S. Court of Appeals judge Michael Luttig, who was considered for a Supreme Court spot during the George W. Bush administration.

So I have some questions for our esteemed justices. Since we’re killing off self-executing sections and clauses of the Constitution - that contain clear and plain language on who can or cannot run - can we also get rid of Section 1 of Article 2, which lays out the age-related and birth-related criteria for presidential candidates, and Section 1 of the 22nd Amendment, which limits a person to two terms in the Oval Office?

Can Congressman Maxwell-Frost, who is 27, now run for president this year?

Can Barack Obama, who served two terms as president, now run for president again?

Can I, a U.S. citizen born in the UK, now run for president? 

If not, why not?

The truth is that this was never about the law, and always about the politics. On Friday, NewsNation host Chris Cuomo asked me how Zeteo will cover Trump’s legal issues in a different way to the mainstream media. My answer? “We will stop with this charade that this is a legal story… I think it’s a mistake to frame this story as a legal story.”

It isn’t. It’s a political story. As the Supreme Court ruling proved today, and as I have pointed out plenty of times before, those nine justices are politicians in robes. Consider this: “The justices fast-tracked the challenge from voters in Colorado and issued their decision one day before Super Tuesday,” notes the Washington Post, “when that state and more than a dozen others hold nominating contests.”

How convenient. When they want to - and when they want to help Trump! - the highest bench in the land can move super-fast. But when the former president needs the court to “run out the clock” on his behalf, as Slate reported last week, and delay a ruling on his presidential immunity case, thereby making “it impossible for Judge Tanya Chutkan to hold a trial in time for the upcoming election,” the justices are only too happy to oblige and go super-slow. 

My friend Elie Mystal, justice correspondent at The Nation, says he now views the Supreme Court “like Batman views Superman: a powerful alien untethered from the laws of physics who is a threat to freedom.”

He’s right. 

Donald Trump will be on the ballot in November. Thanks to a new precedent set by the Supreme Court today: insurrectionists can run for president… as long as Congress gets out of the way. Or, to quote New Republic journalist Osita Nwanevu, “if your party holds a majority in Congress and supports you, you can attempt to overthrow the government without being disqualified from future office if you fail.”

Come November, we will have an insurrectionist running for the highest office in the land because we have a Supreme Court that is unfit for purpose. Trump, it seems, isn’t the only danger to our democracy. 

What I’m Watching

I have my issues with George Galloway, the populist firebrand who won a by-election in Rochdale in northern England last week, winning twice as many votes as the Conservative and Labour candidates combined. But, love him or hate him, have you seen the hilarious and viral clip of the newly-elected Galloway pulverizing a Sky News reporter who tries to corner him with… Rishi Sunak quotes? 

What I’m Reading

The peerless Pankaj Mishra in the London Review of Books nails it: 

“the liquidation of Gaza, though outlined and broadcast by its perpetrators, is daily obfuscated, if not denied, by the instruments of the West’s military and cultural hegemony: from the US president claiming that Palestinians are liars and European politicians intoning that Israel has a right to defend itself to the prestigious news outlets deploying the passive voice while relating the massacres carried out in Gaza. We find ourselves in an unprecedented situation. Never before have so many witnessed an industrial-scale slaughter in real time. Yet the prevailing callousness, timidity and censorship disallows, even mocks, our shock and grief. Many of us who have seen some of the images and videos coming out of Gaza – those visions from hell of corpses twisted together and buried in mass graves, the smaller corpses held by grieving parents, or laid on the ground in neat rows – have been quietly going mad over the last few months. Every day is poisoned by the awareness that while we go about our lives hundreds of ordinary people like ourselves are being murdered, or being forced to witness the murder of their children.”

What I’m Quoting

“If you're not careful, the newspapers will have you hating the people who are being oppressed, and loving the people who are doing the oppressing.” - Malcolm X

***Reminders***

Zeteo is still in soft-launch mode. 

Our shows, and full content, and list of contributors, won’t be released till April. 

In the meantime, have you seen our trailer? Or my announcement for Zeteo? And the virtual town hall I conducted with paid subscribers on Friday?