Of the approximately 100 civil, criminal, and other cases filed against him in various courts, Donald Trump scored a major legal victory on March 4 when the Supreme Court of the United States (Scotus) overturned an earlier Colorado Supreme Court decision taking him off the ballot in the state of Colorado due to what laypersons call a “technicality.”
LAST DECEMBER, THE COLORADO HIGH COURT, voting 4-3, barred Trump from running for the US presidency. Section 3 of the 14th amendment to the US Constitution prohibits any person from holding a public office if he or she has “engaged in insurrection or rebellion.” It ruled that Trump’s participation in the Jan. 6, 2021 assault on the US Congress to prevent it from proclaiming Joe Biden as the US president constituted “insurrection or rebellion.”
However, the Scotus held that the Colorado Court had no authority to issue such ruling and that only Congress had the power to enforce this constitutional ban. It skirted the main issue of whether Trump is an “insurrectionist” or a “rebel.” Question: Should he win in the November presidential polls, can the US Congress refuse to proclaim him because of this ban, or should an implementing law be enacted first?
The unanimous unsigned resolution of the Scotus did not provide an answer, though five of the nine justices argued in their separate opinions that the ban should be contained in a law. To pass this legislation prior to the US presidential election this November is almost impossible given the huge political chasm dividing the two houses of Congress. The Senate is controlled by the Democratic Party while the House of Representatives is dominated by the Republicans, something reminiscent of the repeated attempts—thus far unsuccessful—of our own Congress and/or its members and supporters to alter our fundamental law.
Though it ruled that the constitutional ban may be enforced by state courts on candidates seeking state offices, as contradistinguished from federal offices, the Scotus also left open the question of what constitutes an “insurrection.” To stress, it hardly touched on that very core issue of whether Trump committed “insurrection or rebellion.”
IN CONTRAST TO THE US FEDERAL SYSTEM, ours is a unitary or centralized state. Hence, there is no exact parallel in our country comparable to what the Scotus had done. Perhaps, the closest I can cite as a nearly comparable example is this: The Scotus ruled that state courts, like the Colorado Supreme Court, have no jurisdiction to decide cases involving violations of the federal Constitution.
For this reason, the Scotus overturned the lower court’s decision by means merely of an unsigned resolution that does not require a “certification … signed by the Chief Justice … [that] [t]he conclusions of the Supreme Court in any case submitted to it for decision … [had been] reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court.” Our Constitution requires this certification.
Clearly, the Scotus decided to rule “narrowly,” and avoided entering into what the late conservative Justice Felix Frankfurter described as the “political thicket,” preferring not to be directly involved in political controversies, much less to take out from the ballot a candidate who is the obvious choice of one of two major political parties in the US.
In fact, whether by coincidence or design (?), the Scotus ruling was released on “Super Tuesday” when the two US political parties in 15 states of the US conducted their primaries and/or caucuses to choose their presidential choices. Trump triumphantly waived the Scotus decision as an implied endorsement to continue his candidacy. He handily won in 14 of those critical states (except in Vermont) constraining his remaining opponent, Nikki Haley, to withdraw from the nomination game without endorsing Trump, contrary to the lofty tradition that defeated candidates gracefully endorse the winner. Instead, she warned die-hard Republicans who want to “Make America Great Again” that “chaos and personal grievance always follow Trump.”
THIS TYPICAL JUDICIAL SHYNESS is, however, taboo in our country because our Constitution mandates our Supreme Court with the duty, not just the power, “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”
This judicial duty has many times placed our Supreme Court in the vortex of political whirlpools. Since this duty is not conferred on the US judiciary, disciples of Frankfurter abhor judicial “activists” and “reformers.”
Be that as it may, there are still many other cases that have reached the Scotus. Worth watching is whether the top US tribunal would rule narrowly again and bury its head in the political sand when it takes up Trump’s defense of permanent presidential immunity—whether of the incumbents or the retired—to dodge federal verdicts, like the imposition on him by a New York trial court of a $454 million fine for fraud committed in that state.
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