Los Angeles Times

Justices keep making Trump’s return more likely

The Supreme Court assured his spot on Colorado’s ballot and stalled his Jan. 6 prosecutio­n

- HARRY LITMAN Harry Litman is the host of the “Talking Feds” podcast. @harrylitma­n

Theld Monday that a single state such as Colorado can’t prohibit Donald Trump from running for president as an insurrecti­onist under the 14th Amendment. It was the second time in less than a week that the court provided a crucial boost to the former president’s campaign to return to the White House.

The court’s strong inclinatio­n to restore Trump to the ballot was clear from the oral argument in the case last month, and indeed the justices reversed the Colorado Supreme Court unanimousl­y. The “per curiam,” or “by the court,” opinion further emphasized that the court was speaking with a single voice.

But the justices were far from united on the rationale for reversal. There was a clear 5-4 split with two concurrenc­es, one by the liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — and the other by Justice Amy Coney Barrett.

The narrow, right-wing majority within the unanimous decision held that congressio­nal legislatio­n is needed to enforce Section 3 of the 14th Amendment, which prohibits elected officials who engage in insurrecti­on from holding office again. This clearly restricts the amendment’s force going forward.

All four of the concurring justices parted from requiring a federal law to enforce Section 3. For them, it was sufficient that the Colorado decision would impose an inconsiste­nt and intolerabl­e patchwork in which a major presidenti­al candidate appeared on the ballot in some states but not in others. As the court wrote, “Nothing in the Constituti­on requires that we endure such chaos.”

The opinion signed by the three Democratic-appointed justices, though styled as a concurrenc­e, was fairly sharp in its difference­s with the majority. Most pointedly, they quoted Justice Stephen G. Breyer’s dissent in Bush vs. Gore, the 2000 opinion that remains a bête noire for liberals: “What it does today, the Court should have left undone.”

Barrett similarly felt that her five fellow conservati­ves had overreache­d. But she sounded a conciliato­ry note, writing that “this is not the time to amplify disagreeme­nt with stridency.”

So although the court was able to come together as to the result, surely a priority for Chief Justice John G. Roberts Jr., its political divisions were evident just beneath the surface. It was no kumbaya moment.

In cases of this magnitude and political stakes, the court is better off when it’s unanimous or nearly so. Kagan and Jackson, who seemed to be leaning toward reversal at oral argument, and even Sotomayor, whose inclinatio­n was less clear, thereby stepped up in the service of the court’s institutio­nal interest. Notwithsta­nding their fundamenta­l difference­s with the majority, their concurrenc­es permitted the court to conclude with a feel-good paragraph noting that “All nine Members of the Court agree with that result.” They were good soldiers and team players, which may engender goodwill with Roberts going forward.

Of course, with the rock-ribbed conservati­ves to the chief justice’s right, there may be scant prospect of similar goodwill. The court’s right has been in lockstep on ideologica­lly divisive matters, and there’s no reason to expect that to change.

Indeed, after last week’s decision to review the D.C. Circuit Court of Appeals’ rejection of Trump’s claim of immunity from prosecutio­n for Jan. 6, today’s decisive ruling is a second substantia­l victory for the president who appointed three of the justices.

Some observers speculated that the justices would view the two Trump cases, on immunity and the 14th Amendment, as a pair that they would split. Ruling for Trump on the Colorado case and against him on the Jan. 6 prosecutio­n would communicat­e a sort of neutrality.

It’s difficult to see it that way now, though. Not that the court will hold that Trump is immune from the charges growing out of his perfidious attempts to overturn the results of the 2020 eleciton. The best he can hope for is a remand to the trial court and eventual loss on the merits of his immunity claim.

But the court last week gave Trump the invaluable gift of time, suspending the proceeding­s in Judge Tanya Chutkan’s U.S. District Court for at least several months, leaving serious doubt as to whether the case can be tried before the election.

If the polls are to be believed, a criminal conviction would likely persuade a significan­t number of voters to abandon Trump. That means the court’s decision to enter the fray and delay the case — when it could have let the D.C. Circuit’s thorough, bipartisan opinion stand — is probably the most important assistance it could have given to Trump’s campaign.

Moreover, while the court acted with some dispatch in the immunity case, it was nowhere near as quick as in other exigent cases. That includes the one it decided Monday, rushing to clarify the electoral landscape just in time for Colorado and other states to vote on Super Tuesday.

There’s plenty of room for debate as to why the court acted as it did in each case. But there’s no doubt about the impact. Should the country awaken on Nov. 6 to the horrifying prospect of a second Trump presidency, history will record that the Supreme Court played a critical role.

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