The 14th Amendment Case

Supreme Court: The states cannot individually disqualify federal candidates under the 14th Amendment.

Conde Cox predicted the nine-zero Supreme Court vote to overturn Colorado.

Yesterday he wrote me to say there is a 50% chance that Donald Trump will personally seek Chapter 11 bankruptcy protection within the next 90 days. This would happen because of federal court deadlines that are applicable to Trump arising from judgments recently entered against Trump exceeding $600 million. 

A bankrupt Trump?  I will be watching.

Cox is well qualified to make these predictions. He was there at the Supreme Court to watch the arguments in the Colorado case. He has been a member of the bar of the U.S. Supreme Court for 29 years. He is a commercial and business disputes lawyer. He is the immediate past president of the Federal Bar Association—Oregon Chapter.  He has been rated for many years as a Thomson-Reuters ‘Super Lawyer’ in the field of business bankruptcy. 

Cox resides in Ashland, Oregon. 

Conde Cox website

Guest Post by Conde Cox

I made my first prediction on January 9, 2024, the day after I witnessed first hand the oral argument before the U.S. Supreme Court in the Colorado 14th Amendment case. On Monday of this week, the Court  issued its 9-0 decision to allow former President Trump to remain on the ballot.

 

A Colorado trial court decided, without input from a jury, after a five-day trial, with many witnesses and hundreds of documents, that the former President had engaged in an “insurrection” on January 6, 2021. On that basis, the Colorado Supreme Court concluded that Trump was disqualified from the Colorado Republican Primary ballot. That was in accordance with the post-Civil War 14th Amendment. As finally adopted, the Amendment used broad language, which has led us to the quagmire in which we find ourselves today. It required disqualification from state or federal office of individuals who had previously sworn an oath of loyalty to the U.S. Constitution, if they subsequently engaged in “insurrection or rebellion against” the Constitution. 

 

During the oral argument in this case, all nine Justices seemed to me palpably uncomfortable with the notion that all 50 States should be allowed, separately, perhaps in as many as 50 different lawsuits with 50 different sets of rules of procedure and rules of evidence, to decide whether the 14th Amendment disqualifies Trump.

C-SPAN: "Unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination."

 

Even Justice Jackson, the newest Justice, an unabashed liberal, and the only black woman ever to serve on the Court, observed during the oral argument that the drafters of the 14th Amendment could not possibly have intended that the former Confederate states could turn the Amendment on its head. The drafters surely would not have wanted Alabama or Mississippi to have the separate and independent right to decide in lawsuits filed in their states’ courts whether individual insurrectionists are qualified to run for national office. If each State could separately decide whether the 14th Amendment disqualifies an individual from holding office, then the Amendment’s very purpose could easily be thwarted. It could allow states that would install even Jefferson Davis as U.S. president the right make such a decision. The overall purpose of the 14th Amendment was to LIMIT states’ rights.

Five of the nine Justices joined Monday’s “Per Curium Opinion,” (i.e., no individual Justice is the sole author), reversing the Colorado Supreme Court. The three liberal Justices (Jackson, Kagan, and Sotomayor) joined in a separate written concurring opinion. The important point made by these three in their concurrence is that the conservative majority broke with the Court’s long-standing tradition of not addressing legal issues that are not necessary to decide a particular case. Here, the liberals wrote that the majority unnecessarily decided that it is solely the Congress which can prescribe a statutory mechanism for enforcement of the 14th Amendment’s disqualification clause. This was without a doubt an expansion of the issues that the Court was required to decide in order to leave or remove Trump from the Colorado ballot. The liberals therefore rightly pointed out that other actions -- perhaps federal court (not state court) litigation initiated by the Justice Department, or perhaps other forms of federal government action -- might suffice as a legal means to enforce the disqualification clause.  

Quoting from the three liberals’ concurrence: 

“We cannot join an opinion that decides momentous and difficult issues unnecessarily. . . [in order] to insulate this Court and petitioner [Trump] from future controversy.”

By limiting enforcement of the 14th Amendment’s disqualification clause to procedures not yet adopted, and solely to processes prescribed by Congress, they would be too late to apply to Mr. Trump. As a practical matter, the Supreme Court’s conservative block forever prevented the Anti-MAGA faction in our country from raising whether Mr. Trump disqualified himself. Although I am somewhat liberal politically, I consider myself abashedly neutral and unbiased on legal issues. Therefore, I personally support this novel and principle-breaking choice made by the conservative block of the Court. It breaks with tradition for the well-intentioned purpose of trying to avoid future incidents like those we experienced on January 6th three years ago. By this, I mean that the conservative majority's approach makes ineffectual any attempt by either side to assert on January 6th of every four years, or by some other disruptive means, that the opposing candidate has engaged in insurrection and is thus disqualified. Was the Iran-Contra affair an insurrection? Was the release of billions to our sworn enemy, Iran, in exchange for no-nukes, an insurrection? 

None of the Justices addressed the central factual issue of whether the Colorado trial court got it right in deciding that Trump was an “insurrectionist.”  That has been left for another day, perhaps after the election under the procedures this case calls for Congress to adopt. I consider it highly unlikely Congress will do so. They are suffering from a severe case of political paralysis. Besides, bullies who are in fact intellectual infants never like to be told what to do. Ever.

 

Five majority Justices plus three concurring Justices total eight Justices. Where is the ninth? Justice Amy Coney Barrett wrote a second concurrence opinion signed only by her. She indicated that while she agreed in the result reached by the conservative majority, she refused, much like the three liberal Justices, to join the Court’s Per Curium opinion that insulated Trump (and the Court itself) from future controversy. Here is how the mild-mannered and personally-likable Justice Barrett (notwithstanding her vote to overturn Roe v Wade) expressed herself:

This case “does not require us to address the complicated question [of] whether federal legislation is the exclusive vehicle through which Section 3 [the disqualification clause] can be enforced. The majority’s [Per Curium Opinion’s] choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.

Hear, hear, Justice Barrett!  Hear, hear!!

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