Supreme Court’s new split emerges in Colorado case

 

Gordon L. Weil

The Supreme Court’s decision preventing Colorado from keeping Donald Trump off the Republican primary ballot revealed two splits among the nine justices.

While all nine agreed that were adequate grounds to determine that a decision relating to a federal office could not be made by individual states, but only by the federal government, five justices went even further. 

The five ruled that Congress is required to pass a law giving effect to a ban on insurrectionists holding public office before they can be blocked.  In other words, the Constitution’s 14^th Amendment ban cannot function without additional congressional action.  This ruling was not necessary to overrule Colorado, but, for the first time, it established rules for the future.

Three justices disagreed vehemently and protested that it was not necessary for the majority to go that far, and it should not have.  Frequent judicial practice is to avoid making decisions that are not needed to produce a result.

Another justice wrote that sending a unified message rather than displaying a heated and unnecessary split would have been in the public interest.  This justice agreed with the three that the Court should not have gone beyond what was required and did not endorse the majority’s additional ruling. The justice said the Court should not have entered into unneeded controversy during a campaign year.

This justice stated: “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.”

This justice put the public interest ahead of the frequent partisanship shown even on the Supreme Court.  She is Justice Amy Coney Barrett, a Trump appointee.  Thus, this was not a purely partisan split, though the three other justices who opposed the extra ruling had all been appointed by Democratic presidents.

So, aside from the split on the wisdom of the extra opinion, what other split existed? 

Male-female.

Five justices, all men and all GOP appointees, couldn’t resist going too far in their enthusiasm to overrule Colorado and ease Trump’s way.  Without their unnecessary and potentially controversial expansive ruling, the women might have simply agreed with the decision to block Colorado’s decision.  The result would have offered the public a unanimous and appropriate decision.

Instead, the majority got a scolding by Barrett, and the Court did nothing to repair its declining image.