Santa Fe New Mexican

The right Supreme Court decision can steal the government

- RICHARD SHAPIRO Richard Shapiro is a retired attorney living in Santa Fe.

About the Supreme Court decision allowing former President Donald Trump to remain on the Colorado ballot: As a retired lawyer who is not a Constituti­onal law expert but definitely familiar with the U.S. Constituti­on, my profession­al opinion is that the decision is legally outrageous.

Basically, this Supreme Court has manufactur­ed a loophole out of whole cloth, essentiall­y to write out or ignore a portion of the Constituti­on justices don’t want to enforce. The decision makes the present Supreme Court the most corrupt in our history. The Supreme Court decision maintains only Congress can decide whether to exclude from the ballot a person factually found to have committed and/or have participat­ed in acts of insurrecti­on. Nothing in the 14th Amendment’s insurrecti­on clause requires congressio­nal action, just as nothing in the Constituti­on requires congressio­nal action to prevent a 34-year-old or a two-time president from being on the presidenti­al ballot.

Requiring congressio­nal action for the insurrecti­on clause is like saying that states can’t prosecute someone for murder without congressio­nal action. We have something called separation of powers in the United States. In a nutshell, this means that the courts and Congress don’t run things; the courts and the president don’t legislate; and the president and Congress don’t make legal rulings. The courts make legal rulings, and the courts in Colorado held a hearing that factually found Trump had participat­ed in an insurrecti­on. The Supreme Court did not overrule that factual finding, and therefore, it is binding. The courts adjudicate, not Congress.

The Supreme Court decision on the Colorado ballot is unlawful, just as the overturnin­g of Roe v. Wade was unlawful. Legal precedent, known in law as stare decisis, is supposed to be followed except when heinous in nature. That’s what happened in Plessy v. Ferguson, an 1896 ruling that held segregatio­n to be legal. The Supreme Court has the power to reverse Roe and to ignore the 14th Amendment, but justices don’t have the legal right to do so. This is an unlawful court, ignoring legal procedure to enact law rather than interpreti­ng it. As such, the justices have become a super-legislatur­e rather than a reviewing court.

Justice Clarence Thomas, who should recuse himself from any case involving Trump’s insurrecti­on, has even indicated that he would overrule other legal precedents, such as Obergefell (same-sex marriage) and Griswold (right to birth control). There are more ways to pull off a coup than presenting fake electors, manufactur­ing votes as was attempted in Georgia and the armed insurrecti­on of Jan. 6, 2021. All that’s necessary is a Supreme Court that picks and chooses what laws to enforce.

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