Progressives Push for Supreme Court Reform in 2024

Progressives in Congress just reintroduced a bill to increase the number of U.S. Supreme Court (SCOTUS) justices to from nine to 13 as part of a broader push for Supreme Court reform. 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.  

Supreme Court Reform and the Implications of SCOTUS’s Decision

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. 

Section 3 vs. Section 5: The 14th Amendment Debate and Supreme Court Reform

SCOTUS’s decision held that only Congress, not the states, may bar a candidate from running under disqualifications listed in Section 3 of the 14^th Amendment, which include having engaged in insurrection. 

Missed Opportunities for Supreme Court Reform Accountability

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. 

SCOTUS’s Rationale and Legal Precedents in the Context of Supreme Court Reform

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 14^th 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. 

Criticisms of the Majority’s Interpretation and the Need for Supreme Court Reform

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.” 

Minority Opinion and Concerns About Supreme Court Reform

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. 

States’ Rights, the Constitution, and Supreme Court Reform

All the justices seem to agree that nothing in the 14^th 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. 

Historical and Legal Context for Supreme Court Reform

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. 

The Potential Consequences of Inaction and the Importance of Supreme Court Reform

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 Majority’s Concerns About Congressional Power and Supreme Court Reform

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. 

The Urgent Need for Supreme Court Reform

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. 

The post The Supreme Court Should Have Held that Trump is an Insurrectionist. It would solved most of America’s Problems. first appeared on Inside The Political Chaos.

Introduction: Supreme Court and Voting Rights

In a dramatic all-nighter, Senate Republicans recently blocked Democrats from bringing their voting rights bill, the For the People Act, to a vote. Democrats are vowing try again in September. The legislation may be the last, best hope to counter Republican voter suppression, because the Supreme Court has shown a penchant for stretching the Constitution to give Republican states latitude to suppress minority voting.

Supreme Court’s Recent Decision on Voting Rights

In its 5-4 July decision in Brnovich v. the DNC, the Court held that Arizona voting restrictions didn’t violate the 1965 Voting Rights Act, which prohibits states from denying or abridging the right to vote based on race or color. Writing for the six-justice majority, Chief Justice John Roberts acknowledged that Arizona’s restrictions fall more heavily on minorities, but argued that the disparity doesn’t “result in unequal access to” voting and that “Small disparities are less likely … to indicate … a system is not equally open.” But as the three dissenting justices argued, that view ignores the facts.

Supreme Court’s Recent Decision on Voting Rights

First, the disparities aren’t small. In Maricopa County — which accounts for 60 percent of all of Arizona’s votes — Hispanics, Blacks and Native Americans were twice as likely as whites to have their ballots discarded under similar rules in the 2016 election. In Pima County (15 percent of Arizona’s votes), Hispanics were 148 percent, Blacks 80 percent, and Native Americans 74 percent more likely to have their votes tossed.

Supreme Court’s Recent Decision on Voting Rights

Arizona’s new law discards votes cast in non-designated locations and prohibits third parties from collecting ballots to deliver to designated locations unless they are family, caregivers or live in the same household; only 18 percent of Native Americans living in rural counties receive home mail delivery, and many would have to travel up to two hours to get to a mailbox. As many as half of them don’t own cars and rely on friends and neighbors for transportation (not family, members of the same household, or caregivers).

Supreme Court’s View on Voting Rights Disparities

Nonetheless, the Court decided these disadvantages don’t exceed the “usual burdens of voting.” It argued that Arizona does give minorities equal opportunity to vote and maintained that the “burdens…are modest.”

Impact of Small Disparities on Voting Rights

Second, those so-called “small disparities” can make big differences. The predicted number of votes that would be tossed out under Arizona’s law exceeds the margins of victory in 2018 and 2020. Trump lost Arizona by only 10,457 votes. Native American and Black voters likely carried victories for Biden and down-ballot black candidates.

Legal and Historical Context of Voting Rights

Third, the Arizona law doesn’t meet the Voting Rights Act requirement that any disparities in minority voting opportunities be justified by legitimate government interests. Roberts acknowledged that there was no evidence of voter fraud in Arizona, but argued that the state still had a legitimate interest in preventing it — essentially allowing Arizona’s voting restrictions based on a risk that didn’t exist. That decision will encourage more voter restrictions based on virtually any hypothetical concern Republican state legislators might choose.

John Roberts’ History with Voting Rights

Roberts has long displayed an affinity for voting restrictions. As a young aide in Reagan’s Justice Department, he wrote 25 memos and ghost op-eds opposing a 1982 VRA amendment that made violations easier to prove.

His most sweeping attack on minority voting was in the 2013 Shelby v. Holder decision, which struck down Section 4(b) of the VRA, which required states with histories of suppressing minority voting to clear voting law changes with federal authorities in advance.

Constitutional and Legislative Considerations

The Shelby decision relied in part on the 10^th Amendment, which reserves to the states powers not delegated to the federal government. But the 10^th Amendment doesn’t mention elections. The 15^th Amendment does. It prohibits states from denying or abridging the right to vote based on race or color, and expressly gives Congress the power to enforce that prohibition. Requiring federal pre-clearance for states with a history of voter suppression would seem to fall clearly within that power. So, the 10^th Amendment should not supersede the 15^th when it comes to Congress’s power to uphold voting rights.

Article I, Section 4 also allows Congress to alter restrictive state election laws relating to Representatives and Senators. Since they predominantly share the same ballots as presidential candidates, Congress’s power to alter those laws also affects presidential elections.

The Shelby decision alsoinvoked the theory of equal sovereignty (ES) which requires the Federal government to treat states equally. The Court majority held that Section 4(b) of the VRA violated the Constitution because it singled out certain states for federal pre-clearance.

But ES is nowhere in the Constitution; it’s not even a law. It was invented to challenge different criteria used to admit new states into the Union. In application, it forbade laws that exceeded Congress’s Constitutional powers. But changing state election laws is well within Congress’s power under the 15^th Amendment. 

Roberts’ Role in Voter Suppression Cases

Roberts has been a swing vote or joining vote on nearly every voter suppression law that came before him. Notably all the laws he ruled on were enacted by Republicans. Leaked communications reveal a deliberate Republican strategy of suppressing minority voting.

It’s therefore no surprise Arizona’s voter restriction law followed minority voters’ contribution to Republican losses, or that the demise of VRA’s Section 4(b) opened the floodgates to a cascade of Republican voter restriction laws that violated the VRA. It was all part of a conscious GOP strategy.

The Future of Voting Rights Legislation

Voter suppression is a threat to democracy’s core and needs solutions. There is little hope for solutions from the Supreme Court. Republicans have stacked it with justices who will keep them in power even if it means abusing the Constitution.

The best hope of stemming Republican voter suppression is therefore to pass the For the People Act. Currently, Congressional Republicans oppose it. Ending or modifying the filibuster could put Senate Democrats in a position to pass it anyway, but not all of them support that.

At his confirmation hearing Roberts promised, “Any issues that come before me under the Voting Rights Act, I will… decide after full and fair consideration… in light of… the critical role… the right to vote plays as preservative of all other rights.” He has not kept that promise. That should stiffen the resolve of Democrats, and perhaps even a couple of conscientious Republicans, to do whatever’s necessary to pass the For the People Act and preserve Americans’ rights.

The post Don’t expect Supreme Court to do the right thing on voting rights first appeared on Inside The Political Chaos.