SCOTUS Screws Up
Right Decision, Wrong Reason
Long ago and far away from the nation’s capital—all the way up in Cambridge, as it happened—a great wizard of political science, and no slouch at American history either, once described the American system of governance as that of a Tudor republic. By this label Samuel Huntington referred to the fact that the 17th-century British settlers of North America brought with them the governmental traditions of late medieval England, which came down to a system of “courts and parties.”
In this system Common Law stood above persons, leading to an unusually strong role for courts in which judicial functions acquired quasi-legislative roles. Additionally, these traditions included: an upward array of governance from local then to regional then to that of the realm in its entirety; government with divided powers but not divided functions; and abjuration of a standing military in favor of popular militias. In short, it was a system fearful of centralized concentrations of power and confident in the capacity of citizens, formed as parties based on affinity and interest, to respect and administer the law. Any student of American history or government who cannot see how Tudor traditions influenced decisively the eventual writing of the Federal Constitution is a student who probably ought to be studying something else.
Nothing human and thus mortal is perfect—“From the crooked timber of humanity no straight thing was ever made,” yes, yes, thank you Immanuel, and thank you later on Isaiah. But these traditions that we here in North America have long cherished have usually worked pretty well…..until lately. Not surprisingly, they threaten to stop working at all when the highest court in the land looses its grip on its own legal logic and starts acting instead like berobed nincompoops—or should I say ninecompoops?
No one has to remind us how dysfunctional the U.S. Legislative Branch has become, or that it has been that way since even before the uber-dysfunctional 118th Congress. No one has to remind us either about the depths of incoherence to which the Executive Branch can fall, as the period from January 2017 to January 2021 readily reminds us. (What we have experienced since only seems excellent to some on account of its merely being more normal; I could make a falling bar joke here but I’ll desist.) That is why our trust in the courts has become so much more precious than usual. When all else fails, we have hoped that the keepers of the law will keep us from mayhem.
That is precisely why what we have seen, with eyes wide open, over the past few days is so shocking, or should be. We have borne witness to a stunning example of “courts and parties” operating at their worst. And worse than worst, if such a thing is possible, what we should understand about what we’ve been seeing we mostly don’t. After what we’ve been through now for some years it seems normal, but it just isn’t. So I pinch myself wondering, is everyone out there who is supposed to be paying attention to the legal order within our putative liberal polity just so sleep-deprived and screen-addicted that they can’t think straight anymore? Or is it me who has stumbled off the high road of salve and sanity? Clearly, I don’t think it’s me, or you wouldn’t be reading this essay.
We have seen an apparent 9-0 vote that was unanimous only for posturing or performative reasons, but that even at 9-0 is based not on mere legal fiction but legal fantasy. We have seen SCOTUS make the right decision about an equally bizarre ruling by the court in the state of Colorado but for utterly the wrong reason. We have seen a rush of commentary much of which is nearly as mad as the subject on which it is commenting. And we have still not seen, insofar as I am aware, anyone point out the several things that are seriously wrong with all this. And so George: “We have now sunk to such a depth at which the restatement of the obvious is the first duty of intelligent men.” I now proceed to do my duty, or try to in any case.
Let’s take the massive jumble of legal malpractice before us part by part, one dismaying piece at a time. First, Colorado, then SCOTUS.
Very Bad
Two galactic-scale elements bestrode the legal malpractice of the Colorado court this past December. One was that it presumed on the state level to sit in judgment of events that did not take place in or anywhere near Colorado. It convicted Donald Trump of insurrection concerning events that took place before and on January 6, 2021 in Washington, DC, not Denver. It had no jurisdictional business doing that, not least because it lacked any subpoena power to investigate what actually happened. It reached a verdict based on high thin air and pure political vanity. But oh, some say, its motives were benign. Sorry; we will not defeat threats to the rule of law by circumventing the rule of law.
That is not even the worst of it. The state justices in Colorado must have been aware of the Justice Department’s August 2023 indictment of Donald Trump. They must have heard of Jack Smith by the time they issued their December ruling. Someone could have walked from Washington to Denver in more than three months, so they must have known that the trial based on the four felony counts in that indictment had not yet begun, let alone had concluded with a conviction. So they presumed a guilty verdict in a trial not yet held in order to apply the insurrection clause of the 14th Amendment—a Federal piece of law—to a state jurisdiction.
Now, it is true that the four felony counts in the Federal indictment do not include insurrection per se. They are, just to remind you, (1) conspiracy to defraud the United States, (2) witness tampering, (3) conspiracy against the rights of citizens, and (4) obstruction of and attempt to obstruct an official proceeding. Why didn’t Jack Smith include an insurrection indictment against Trump? Ask him; he will answer by telling you that throwing a double jeopardy spanner into the works would screw his chances of getting a conviction on anything.
If you don’t readily understand this answer it likely means you have already forgotten that Trump’s second impeachment trial was precisely on the question of insurrection, and that he was acquitted by the Senate. (The vote on insurrection was 57-43 in favor but that fell ten votes short of the needed two-thirds majority to convict.)
An impeachment of a President is thankfully an unusual event but it nevertheless qualifies as a bona fide legal proceeding in our system. That also means, of course, that the Colorado justices ruled in direct opposition to a legal verdict, but who is counting errors here when there are so many? (Indeed, while we’re briefly on the topic of the second impeachment trial, remember that Chief Justice John Roberts, whose explicit Constitutional obligation was to preside over that trial, simply refused to do so on absolutely no legal grounds whatsoever. He offered none at the time because there were none to offer, leaving Pat Leahy to preside as Senate president pro tempore. By rights, Roberts himself should have been impeached for that and you’ll remember, too, perhaps that no one of stature said so much as a single word about it. Why?)
Now, it doesn’t take a legal genius to reason that if a Federal trial were to have convicted Trump on all four Federal felony charges, or even just some of them, thus establishing a clear understanding of what he was trying to do, then presuming insurrection for purposes of applying the 14th Amendment would not require much of a logical leap, especially in light of that 57-43 vote. But in Colorado they just skipped that step. Whatever happened to the principle that someone is innocent until proven guilty?
Two—this is a bit esoteric but bear with, please—this whole business was about the Republican primary ballot. A party primary ballot elects no one to any state or Federal office. All it does, all it can do, is sort through the dramatis personae of a coming election. U.S. political parties, even the major ones, are technically private associations. They have, or at any rate they originally had, the same legal status as a church or a Kiwanis’s Club chapter. They are guaranteed the right to form private associations thanks to the freedom to assembly written into the Constitution. But technically speaking, since they have no governmental function government cannot—or at any rate should not—exert power over them unless they conspire to or actually break a law.
More, therefore: The Republican Party of Colorado should be able to hold a primary election any way it wants, and at any time it chooses. It can put Donald Trump on the ballot if it wants. It can put Bozo the Clown on the ballot if it wants, or Pepe the Frog. It can hold an election for members only, who presumably pay dues to finance the party’s various activities. Or it can try to lure independents to its brand by holding an open primary, thus giving free-riding strangers the same voting power as a dues-paying members, which voids any obvious advantage in actually being a member. But it has the right to behave illogically and even foolishly if it wants. So can the Democratic Party of Colorado, the Green Party of Colorado, and so on down toward not necessarily deserved obscurity.
But the party organization, by rights, should finance the primary election in its entirety, and the state, whether Colorado or any other state, should spend not one cent of taxpayer money to do so. There is no sound legal basis for any other conclusion, despite Congress having passed laws saying otherwise starting in the 1970s, because the U.S. Constitution says not one word about political parties which, again, are private entities whose activities on their own cannot elect anyone to any office.
Further, the U.S. Constitution neither says anything nor even implies anything about there being two and only two major parties, despite the fact the logic of the Electoral College pushes hard in that direction in a presidential as opposed to a parliamentary system. Since the Constitution says nothing at all about parties, neither the state of Colorado nor any of the 49 other states has any legal standing to engage with the primary voting process unless, again, that process involves some kind of criminal activity.
This is, regrettably, not how the system actually works in practice today after many years of self-serving and willful major-party distortion of the system, to include commandeering public resources to finance what are private partisan activities. It sums to a result not beyond Madison’s imagination in The Federalist No. 10 on factions, and he would recognize the distortion for what it is: a quiet and protracted scandal directly prejudicial to potential third-party entrants into American electoral politics. In this way, too, our courts as well as Congress have failed “We the people.”1
To sum up: The state of Colorado insinuated itself jurisdictionally where it had no standing to be, outrageously prejudged the outcome of one Federal trial and ignored the outcome of an earlier one, and did all this to insert itself into a party primary process it has no constitutional legal standing to engage with in the first place. As jurisprudential conduct goes, that was very, very bad.
Even Worse
How could what the SCOTUS did a day or so ago be worse even than that? It was a struggle, no doubt, but it was indeed even worse if only because what the SCOTUS does matters more than what any state court can do.
The proper reason—reasons, really—for the SCOTUS to void the Colorado decision back in December to strike Donald Trump’s name from the Republican Party primary ballot has already been given. Apparently, just as the folks out in Colorado pretended never to have heard of Jack Smith or an earlier Senate impeachment trial, the nine SCOTUS justices—all of them for all we know—pretended never to have gone to law school.
As has already been pointed out by several observers, the SCOTUS elected to base its reversal of the Colorado decision on narrow grounds: that a state cannot rule concerning candidates for Federal election, those being in our system only the President and the Vice-President. Oh, really? This is wrong on so many levels that one is prone to suffer anticipatory exhaustion on having merely to point them out.
First of all, it is simply, plainly, and demonstrably false that states cannot legally do things than affect the election of the President and the Vice-President. The Constitution gives the states the right to decide their electors as they see fit. In our history, for example, some states split their electoral votes for President rather than follow the usual winner-take-all method. It happened several times—three states did it in the 1892 election, for example—and no one thought that the unusual was illegal or unconstitutional. Nebraska and Maine do it still.
For another example, in the case of South Carolina, as all serious students of American history know, not even one popular election for President was held before the Civil War; statehouse members decided the electors it would send to the Electoral College. No one thought that the unusual was illegal or unconstitutional because the states were then considered legally sovereign, with only the rights explicitly enumerated in the Constitution given over to the Federal government.
States still have a wide range of discretion over how elections for Federal office are held. For one thing, the requirements and costs for ballot access on the part of the two major and other minor parties diverge widely from state to state. Of course state discretion raises problems when voter suppression is its unstated aim, or when simple incompetence creates floating chads and other crooked, in the Kantian sense, electoral detritus. But despite a growing number of Federal mandates over the years about who is entitled to vote—which before the Civil War would have been considered none of the Federal government’s business—and despite the Justice Department’s right to review state decisions on voting rights question thanks to congressional legislation explicitly giving it that oversight function (as just occurred with respect to an Arizona law, for example), no all-points legal attack on state authority to make decisions about election procedures has ever been mounted, and for perfectly understandable constitutional-legal reasons. A forced Federal homogenization of state election procedures would mark another and a major step in the denaturing of American federalism itself, and only a small minority in positions of current authority are intent on going there.
Second, the SCOTUS’s presumption that Donald Trump could be or even would likely be the Republican nominee for President come November 5 jumped the gun obviously and no less so than did the Colorado court in presuming the verdict of a Federal trial that had not even begun. Donald Trump’s status is that of a private citizen, period and full stop. He is not now, as of March 5, 2024, formally a candidate for any office. He is trying to be a candidate for office within the confines of a legally private organization known as the Republican Party.
It is one thing for the SCOTUS to rule on the ballot for an actual election whose outcome will determine who rises to high public office and who does not; but as we have taken pains to point out, a party primary election is a private, not an inherently governmental, affair that alone cannot elect, and can never elect, anyone to any office.
Average citizens may not think about this much, for good reason. But Justices of the U.S. Supreme Court are supposed to know and abide by the law of the land, including the Constitution as the highest law of the land. What they have just done, working against a tight deadline, is just make stuff up. It’s embarrassing and they should be ashamed of themselves, all nine of them, for issuing an inane judgment obviously at odds with common understanding and practice, and that as new precedent could jeopardize that common understanding and practice. But there is, apparently, no evident sense among any of them that they have lost their legal marbles, nor any sense among the legal commentariat that they have done anything odd.
Inanity Squared
As to the commentary, such as it is, let’s note only the strange view of Ian Bassin, the Executive Director of Project Democracy. Bassin wrote just after the SCOTUS ruling that the high court’s refusal to exonerate Trump of being an insurrectionist was the real big news in the decision. Trump won a minor technical victory, Bassin claimed, but missed grabbing the brass ring: In the SCOTUS decision Trump “lost on the bigger question of whether he’d been absolved of being an insurrectionist. On that question the Court has now passed the ball to all Americans to ultimately decide on the fitness for office of someone who refused to accept the will of the voters and launched a violent insurrection against our government to block the transfer of power.”
So here we go yet a third time: Ian Bassin knows that Trump launched a violent insurrection, even though the closely related trial concerning Trump’s felony indictment on conspiracy to defraud the United States, witness tampering, conspiracy against the rights of citizens, and obstruction of and attempt to obstruct an official proceeding has yet even to begin. And forgive me for pointing this out again, but Trump has not been accused by the Justice Department of being an insurrectionist for reasons already noted. It’s true: The SCOTUS could have exonerated Trump by pointing back to the verdict of the second impeachment trial, but that would have been seen almost universally as prejudicing the Justice Department proceeding. It’s bad enough that the Roberts’ court is a party to delaying it.
My view of Trump’s intentions and guilt after the November 2020 election is not different in the slightest from Bassin’s. But an individual view, his or mine, is not the same as and is not dispositive the way an actual court proceeding is dispositive. How come I, who am not any kind of lawyer, remark on this elemental distinction while Bassin, who is a lawyer graduated from Yale Law School, does not?
Indeed, why suddenly do so many constitutional lawyers, high and low, near and far, seem determined to set fire to the Tudor republic arrangements that have served us reasonably well all these years? Did law school do something horrible to their brains as well as, usually easier to detect, their souls? Are brains of mush worse than feet of clay?
We are so screwed…… Just what we needed with a gerontologically destined Executive Branch and a wildly dysfunctional Legislative Branch oozing their ways around town for the foreseeable future: a Judicial Branch that, at its highest level, cannot seem to convincingly reason its way out of the back of a minimart. God help us.
Housekeeping Notes
I usually put housekeeping notes at the beginning of a Raspberry Patch post, but this is a special case. Friday is our usual posting day and this coming Friday will be no exception. But this recent SCOTUS decision could not wait that long, so consider it a Tuesday interstice compelled by events.
Erratum: The March 1 post, “Why Trump, Why Biden, Why Are U.S. Politics So Screwed Up?” contained an unfortunate mathematical brainfart. I miscalculated the size in population terms of the core Trump cult because I skipped a critical computational step. I should have taken the total size of the electorate times the percentage of it registered as Republican before in turn multiplying by the 28-35% MAGA-within-GOP estimate. By skipping the middle step I got numbers that were too large. A former State Department colleague, now a faculty member at UVa., thankfully caught the error before, I swear, all the electrons from the post had even made their way to Charlottesville. I, in turn, corrected the text immediately, but of course by then the post with the error had already been sprayed around to the subscriber roster. I regret the error.
The history of public financing of elections, and the 1975 creation of the Federal Election Commission, is long and tangled, and cannot be tackled here. Suffice it to say that the whole notion of public financing arose in the wake of the professionalization of political fundraising and the unfair playing field that the rush of money into U.S. politics created. But the “solution” has not worked, has arguably made things worse for stipulating limits that are unenforcible, and seems to me to be inherently unconstitutional despite having congressional imprimatur. I would not go to the barricades over the FEC and voluntary public financing for elections, but extending the system to cover primary election was and remains simply absurd.