Progressives in Congress just reintroduced a bill to increase the number of U.S. Supreme Court (SCOTUS) justices to from nine to 13. The intention is to minimize the influence of politics on the court— a concern shared by most Americans, who doubt the court would be fair in making decisions affecting the 2024 election.
The bill won’t pass unless Democrats keep their majority in the Senate and flip the House. But SCOTUS’s March 4 decision blocking Colorado and other states from taking Donald Trump — and all other insurrectionists — off their ballots has amplified distrust of the court. Three justices in the minority even suggested that the majority opinion contained gratuitous holdings to protect Trump and other insurrectionists from future removals.
SCOTUS’s decision held that only Congress, not the states, may bar a candidate from running under disqualifications listed in Section 3 of the 14th Amendment, which include having engaged in insurrection.
The court missed an opportunity to mitigate the confusion and distrust infecting the country. Instead, its holding effectively degraded disqualification under Section 3 to a political decision. Now, any insurrectionist whose party can raise a majority vote in Congress can hold any elected or appointed federal office. The more rational holding legally would have been to affirm Colorado’s decision that Trump is an insurrectionist and thus ineligible to be president.
The justices noted, but didn’t disagree with, two Colorado courts’ factual findings that Trump had “engaged in insurrection.” SCOTUS previously held that a state court’s factual findings are taken as presumptive by federal courts unless they’re clearly erroneous. So, SCOTUS chose to let a judicially determined insurrectionist run for president.
To justify this decision, the majority relied on Section 5 of the 14th Amendment, which provides “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” something it has not done. But it is Section 3, not Section 5, that gives Congress the power to ban from or restore candidates to state ballots by a two-thirds vote.
Inexplicably, the majority held that Section 3 merely “reinforces” Section 5, which the justices wrote empowers Congress to “prescribe” how determinations of eligibility should be made. Curiously, the word “prescribe” is nowhere in Section 5.
The majority opinion’s focus on Section 5 seems to be an end-run around Section 3. It’s common sense that the need for the more demanding exercise of power (a two-thirds vote) would replace — not “reinforce” — the easier one (a simple majority). As the minority’s opinion put it, “It is hard to understand why the Constitution would require a Congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation.”
Although the minority concurred with SCOTUS’s final judgement of putting Trump back on the Colorado ballot, they disagreed with other majority holdings more than they agreed with them.
Justice Amy Coney Barrett argued that the majority’s decision should have been limited to the holding that “States lack the power to enforce Section 3” and “should not have addressed whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”
The minority also asserted that there’s nothing to support that Section 3 disqualifications can be made only by legislation, and suggested that the majority was being gratuitous in an attempt to insulate Trump and all other insurrectionists from future challenges to their eligibility for federal office.
All the justices seem to agree that nothing in the 14th Amendment delegates any power to the states to enforce Section 3 against candidates for federal office. Yet the Constitution does give states some power to determine candidates for federal office. Article II, Section 1, Clauses 2 and 3 provide “Each State shall appoint, in such Manner as the Legislature thereof may direct…Electors…who will vote by Ballot for” the president. In some states, electors can vote down a candidate they believe is disqualified.
The majority’s decision cited an 1869 Circuit Court decision in “Griffin’s Case” holding that states have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the presidency. But it omitted to mention the same decision also held “A construction which results in…great public…mischief, must never be preferred to a construction that [avoids it].”
Echoing this, in 1996 the Colorado Supreme Court held in Zaner v. City of Brighton that where the Constitution is susceptible to multiple interpretations, courts must construe its language “in light of the objective to be achieved and the mischief…to be avoided.” Holding Trump ineligible would have satisfied the Griffin decision by avoiding the “great public mischief” of allowing someone who a court determined to be an insurrectionist to run for the world’s most powerful office.
And Trump promises to do a lot of “mischief.” He’s stated that as president he would eviscerate constitutionally protected rights and privileges by seizing control of federal agencies, attacking freedom of the press, prosecuting aides who “betray” him, purging the government of disloyal employees, and firing attorneys general who refuse to prosecute political rivals and critics.
We should take Trump at his word. It comes straight from the playbook of the dictators he has complimented: Kim Jong Un, Vladimir Putin, Recep Tayyip Erdoğan and Xi Jinping.
The justices in the majority expressed the worry that if states could bar candidates from ballots, Congress would be “forced to exercise its disability removal power before voting begins … to have any effect on election[s].” But that’s smoke without fire. Under Section 3, Congress has the “discretion” — i.e., is not forced — to put a candidate back on the ballot with a two-thirds vote even after SCOTUS holds that candidate ineligible.
The justices also expressed concern that state-by-state determinations whether to bar candidates would result in ballots that aren’t uniform. But that’s an argument for SCOTUS affirming that Trump is ineligible to hold office, so all ballots would be uniform and not include him.
Most Americans doubt that SCOTUS will be impartial in decisions affecting the 2024 election. By striking down Colorado’s decision to remove Trump from the ballot, the justices validated their fears. Tragically we have lost faith in the court as the last, best stop in the pursuit of unencumbered justice. No wonder calls to reform it by adding justices are resurfacing.
Neil Baron is an attorney who has represented many institutions involved in the international markets and advised various parts of the federal government on economic issues.