This Supreme Court’s Bush v. Gore Moment Has Arrived

Is the United States Supreme Court really a court in the strict sense of the term? Or is it a political council that yields to the ideologies of its nine unelected members? That’s the overriding question as the high tribunal reviews the Colorado Supreme Court’s ruling in Anderson v. Griswold, which disqualifies Donald Trump from appearing on that state’s presidential primary ballot under the insurrection clause (Section Three) of the 14^th Amendment.

Courts are supposed to adjudicate issues based on the facts and the applicable law, without “fear or favor,” as the cliché goes. Political bodies, by contrast, decide issues on the basis of favored outcomes. The U.S. Supreme Court clearly falls into the latter category. 

No decision in recent history revealed the political nature of the Supreme Court more starkly than its 2000 ruling in Bush v. Gore, which handed the presidency to George W. Bush. Anderson v. Griswold promises to follow in Bush v. Gore’s footsteps.

Bush v. Gore halted an ongoing recount of the vote in Florida, depriving the voters of that state, and by extension voters in the entire country, of their right to a fair determination of the true winner of the election. To justify its decision, the court’s five-member majority invented a theory that the use of different standards of vote counting in different Florida counties violated the Equal Protection Clause (Section One) of the 14^th Amendment. 

The truth was the exact opposite. If anything, equal protection principles required the recount to be completed. As Justice John Paul Stevens lamented in dissent: 

Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

Only the corrupt Clarence Thomas remains from the panel that decided Bush v. Gore. The current court is exponentially more conservative, dominated by six hardcore Republicans, including three nominated by Trump himself. They will find a way to overrule, dismiss or otherwise limit the Colorado Supreme Court’s Anderson decision even if they have to distort the clear meaning of Section Three of the 14^th Amendment, the language of which provides:

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. But Congress may by a vote of two-thirds of each House, remove such disability.

The Colorado Supreme’s opinion is a meticulously crafted 213 pages long. On the issue of whether Trump engaged in insurrection within the meaning of the 14^th Amendment, the court held:

[T]he record amply demonstrates that President Trump fully intended to—and did—aid or further the insurrectionists’ common unlawful purpose of preventing the peaceful transfer of power in this country. He exhorted them to fight to prevent the certification of the 2020 presidential election. He personally took action to try to stop the certification. And for many hours, he and his supporters succeeded in halting that process.

On the question of whether presidents are officers of the United States, the court concluded: 

[T]he plain meaning of “office . . . under the United States” includes the Presidency; it follows then that the President is an “officer of the United States… Indeed, Americans have referred to the President as an ‘officer’ from the days of the founding… Section Three’s drafters and their contemporaries understood the President as an officer of the United States.

The U.S. Supreme Court’s Republican justices like to describe themselves as “textualists” and “originalists” who strictly adhere to the original and plain meaning of legal texts. If they remain true to their stated principles in Anderson, they will uphold the Colorado ruling. 

Sadly, the Republican justices of our highest court are above everything else political actors who have risen to their preeminent positions by demonstrating their fealty to conservative causes. In the end, politics and not the law will lead them to rescue Trump from the insurrectionist label.

The only effective way to halt Donald Trump and the neo-fascist movement he leads is to vote him down next November and build a lasting counter-movement of the left. That is a tall order for supporters of democracy — and time is running out.