The Colorado decision: A John Marshall moment
The 9-0 U.S. Supreme Court vote that Colorado could not remove Donald Trump from the 2024 ballot for president had an unusual juxtaposition between the court’s three liberal justices who filed a concurring opinion and five center-right justices.
The per curiam opinion specifically addressed Section 3 of the 14th Amendment, the “insurrection” clause.
In overturning the Colorado Supreme Court decision allowing Democrat Colorado Secretary of State Jenna Griswold to keep Trump off the ballot because of claims he was an insurrectionist, the per curiam opinion said that “responsibility for enforcing Section 3 [of the 14th Amendment] against federal officeholders and candidates rests with Congress and not the States.”
Section 5 of the Amendment says, “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The per curiam opinion also noted that Colorado did not “identif[y] any tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Fourteenth Amendment.”
Justices Sotomayor, Kagan, and Jackson agreed with the outcome that Colorado lacked the authority under the 14th Amendment to remove Trump from the ballot, but wrote in a concurring opinion that the per curiam opinion went further than needed to resolve the immediate issue.
Justice Barrett writing separately from the other concurrence opined that “this case does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
In other words, the two concurring opinions essentially accuse the per curiam opinion written by the conservative and center-right justices on the court of a little bit of judicial activism by going beyond the minimum needed to decide this case.
Indeed, the court would be hard-pressed to say that only Congress could legislate about, say, Section 1 of the 14th Amendment, the “privileges or immunities” clause.
That states may legislate about, and adjudicate, violations of, and conditions for, the issues governed by Section 1 (within reason) is established. The 14th Amendment as a whole hasn’t been subject to the exclusive power of Congress “to enforce, by appropriate legislation, the provisions of this article.”
Chief Justice Roberts and the conservatives on the court (sans Justice Barrett) did a very clever thing to ward off ballot lawfare on a state-by-state basis between now and the November election, but this required going slightly beyond what was needed to be narrowly adjudicated in this particular case.
They called on the jurisprudence ghost of Chief Justice John Marshall to solidify the supremacy of the U.S. Supreme Court and the national government here. Oddly, the concurrences sided with a more limited view of the Court’s authority, which is more the traditional conservative approach.
Over the years some conservatives have criticized John Marshall for claiming in Marbury v. Madison that “it is emphatically the duty of the Judicial Department to say what the law is,” which is the basis for judicial review, and is what the per curiam opinion did in the Colorado ballot case.
How Marshall concluded that principle, however, demonstrates that it was no great expansion of judicial authority, but an explanation of how the court must sometimes act as a referee between opposing governmental authorities:
Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.
Marshall described the Constitution as “fundamental and paramount law of the nation.” This gives the Constitution its supremacy as law governing government itself.
Perhaps the conservatives on the court now have buyers’ remorse about not hearing challenges in November and December 2020 to election rigging and other illegalities.
Clearly, though, they were flexing some muscle as referee in our constitutional republican system, ala John Marshall. They were not going to play whack-a-mole to every state-by-state Democrat effort to remove Trump from the ballot for 2024. And, like John Marshall, they acted in a way that will do more to preserve our Republic than those who wish to weaken or destroy it.
Image: Henry Inman