The justices who sit on the US Supreme Court really want Americans to think they comprise a non-partisan, apolitical, institution – despite this obviously not being the case.
To that end, it came as little shock when the court this week overturned the Colorado state Supreme Court’s decision to disqualify Donald Trump from appearing on Colorado’s election ballot due to his role in the 6 January insurrection – as set out in the Fourteenth Amendment of the US constitution.
This move serves as the latest illustration of how ideologically extreme and partisan the court has become.
Aggravatingly, even progressive justices can become so insulated in their lifetime appointments in which no enforceable ethics standards apply that they end up enabling their extreme right-wing and ethically challenged colleagues through ostentatious displays of nonchalance.
One such display took place late last month at a National Governors Association event, where justice Sonia Sotomayor, who was appointed by Barack Obama, had the audacity to claim the justices’ check-and-balance-free lifetime appointments are a “protection” that allows them to “grow in the job”. For the likes of right-wing justices Samuel Alito and Clarence Thomas this apparently means receiving lavish trips from billionaires and then not recusing yourself when those billionaires’ interests come before the court.
In Thomas’s case, this professional “growth” is also compatible with being married to a Republican activist deeply involved in attempts to overturn the 2020 presidential election, including the 6 January insurrection itself, and then ruling on cases related to the potential return to the presidency of the man who would have stayed in power had the insurrection attempt succeeded – Trump.
Sotomayor made her recent comments in a conversation with right-wing justice Amy Coney Barrett, in which the two played up their friendship. As readers may recall, Barrett was appointed by Trump near the end of his term, in the fall of 2020, after justice Ruth Bader Ginsburg, a feminist icon, died. In a brazen act of hypocrisy, then senate majority leader Mitch McConnell rushed her confirmation through,despite having refused to allow a vote on Obama’s pick to replace the deceased right-wing justice Antonin Scalia in 2016, instead holding his seat open for a Trump pick, Neil Gorsuch.
This left us with the current iteration of the court, whose 6-3 right-wing majority gleefully overturned Roe v Wade in 2022 and paved the way not only for draconian state abortion bans and a possible national ban, but also for other attacks on the right to privacy that Roe established – on matters such as same-sex marriage, contraception, and more.
Ever since Trump and McConnell stacked the Supreme Court, rendering it an irredeemably partisan institution in its current form, I have considered it illegitimate. Events since have done nothing to disabuse me of that notion – far from it.
The court’s unanimous ruling for Trump against the state of Colorado on Monday deepens its well-deserved legitimacy crisis. Many legal analysts and historians have made compelling arguments in recent weeks that the Fourteenth Amendment of the US constitution’s provision barring insurrectionists from holding office is self-enforcing. The Supreme Court, meanwhile, ruled that Congress must act to enforce the provision, which is something the Republican-controlled House of Representatives will never let happen. It is also inconsistent with how the Fourteenth Amendment, passed in the aftermath of the American Civil War of the 1860s, was applied at that time.
That relevant section of that amendment reads:
No person shall be a senator or representative in Congress, or elector of president and vice-president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
I have very little faith in US institutions in general to hold extremely powerful men accountable for their actions, but Colorado’s state supreme court surprised me and many others by ruling Trump was disqualified from the ballot – a ruling that is clearly in line with both the plain reading and the contextual history of the Fourteenth Amendment.
By contrast, nothing could be less surprising than the US Supreme Court reversing this decision. This move followed shortly after the court agreed to hear arguments from Trump’s legal team on why he should be immune from prosecution for his role in the 6 January insurrection. The court also set an April date for these arguments, delaying Trump’s federal trial.
To be sure, the Supreme Court often moves slowly, but it is capable of moving quickly on an urgent matter, as it did in the 2000 case Bush v Gore.
With that in mind, the high court’s majority is clearly slow-walking Trump’s federal prosecution, easing his potential return to the presidency while jeopardising the probability that he will ever be held accountable for inciting an insurrection and attempting to overthrow the 2020 presidential election.
In light of these facts, frankly repulsive displays of friendship between right-wing and progressive justices only underscore the current court’s illegitimacy, and the court’s three liberals tarnish their own reputations not only with such displays, but also when they join with the right-wingers in a ruling like Monday’s – perhaps out of a misguided desire to present a united front in the face of America’s political polarisation. The issues with this court may take generations to fix, but one thing is clear: history will not look kindly on it.
