Unanimous? Supreme Court Ruling Leaving Trump on Ballot Reveals Split Among Justices

AMY GOODMAN: This is Democracy Now!, democracynow.org. I’m Amy Goodman, with Juan González.

The U.S. Supreme Court ruled Monday states don’t have the authority to remove Donald Trump from the ballot under the insurrection clause of the 14th Amendment, which was written to prevent Civil War Confederates from returning to government. In the majority opinion, justices wrote, quote, “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency,” end-quote. Section 3 of the 14th Amendment has never been used against a presidential candidate; it’s only been deployed eight times since 1860s. Trump responded to the ruling by thanking the Supreme Court.

DONALD TRUMP: I want to start by thanking the Supreme Court for its unanimous decision today. It was a very important decision, very well crafted. And I think it will go a long way toward bringing our country together, which our country needs. … Essentially, you cannot take somebody out of a race because an opponent would like to have it that way.

AMY GOODMAN: The court’s three liberal justices issued a concurring opinion, warning the majority ruling “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”

For more, we’re joined by Mark Joseph Stern, Slate senior writer covering courts and the law, where his latest piece is headlined “The Supreme Court’s ‘Unanimous’ Trump Ballot Ruling Is Actually a 5-4 Disaster.” He’s joining us from Washington, D.C.

Welcome to Democracy Now!, Mark. Why is it a disaster?

MARK JOSEPH STERN: Thank you so much for having me on.

AMY GOODMAN: Your take on this is different from many others.

MARK JOSEPH STERN: So, you know, this is a decision that’s unanimous in name only. If you look at the separate opinions in the case, you can see easily that the court actually split 5-4 on one of the biggest questions here, which is: How can the insurrection clause actually be enforced against candidates who have rebelled against the United States government?

Five conservative justices — as it happens, all five men on the court — reached out and grasped at this bigger question and decided that only Congress, and Congress alone, can enforce Section 3 against federal candidates, against senators, congressmen, the president, any other federal officeholder, and that absent specific congressional legislation enforcing this clause, it just can’t be done. The four women on the court did not agree with that proposition, and they faulted the majority for going way too far in deciding this case. Each of them pointed out this could have been done on far narrower grounds. The court could have unanimously decided that states can’t unilaterally take candidates off the ballot under the insurrection clause, under Section 3 of the 14th Amendment. But instead, the majority couldn’t help itself and went further. And as the three liberals pointed out in their separate opinion, what the majority has effectively done is insulate all oath-breaking insurrectionists, in their words, from ever being disqualified from the ballot in the future.

JUAN GONZÁLEZ: And how would you characterize the differences between the three liberal women justices on the court and Justice Amy Coney Barrett?

MARK JOSEPH STERN: So, you know, the three liberal justices were pretty outraged by what the majority did, and included some rather indignant rhetoric, I think entirely appropriate, certainly in line with the court’s usual operations, just, again, faulting the majority for reaching out, for going way over the line and answering a question that did not need to be answered, and, by the way, also doing so in quite an ambiguous way. It leaves a lot of questions open for the future that the court probably should have resolved if it was going to go this far.

So, their opinion really read like a dissent. And, in fact, I happened to sort of look under the hood of this file. I looked at the metadata. The Supreme Court forgot to scrub the metadata. There is an indication that this was originally styled as a dissenting opinion, and at some point very late in the process, it was changed to a concurrence, still reads like a dissent.

Justice Amy Coney Barrett agreed with the liberals that the majority went too far, but she decided to engage in some tone policing. She said, you know, “There’s stridency in the liberals’ opinion. This is a time to turn the national temperature down, not up. So I’m not going to join them, and I’m not going to elaborate any further on my own disagreements, because I don’t want to inflame the nation any more than it already is in a presidential election year.” So, really, a difference in style, not substance.

JUAN GONZÁLEZ: And in terms of the implications of this decision for those anti-Trump Americans who are looking for the legal system, either through this kind of a challenge or through the criminal cases against Donald Trump, to be able to prevent him from actually running or winning a term as president, what’s your sense about that?

MARK JOSEPH STERN: So, I tend to agree with the three liberal justices that what the majority did here was effectively foreclose any avenue of disqualification for Donald Trump or any other person who engaged in January 6th and then runs for federal office or seeks an appointment to federal office. I think that pathway is now closed. And the reason why is because I don’t think anyone seriously thinks that Congress is going to now enact some kind of special detailed legislation that creates rules and procedures and standards for disqualifying Donald Trump and other insurrectionists from the ballot. Jamie Raskin, a Democratic congressman from Maryland, is working on it. There’s some movement. But no one thinks it’s going to clear 60 votes in the Senate.

Turning to the criminal justice system, again, it’s frankly unclear whether the majority thinks that Donald Trump can even be disqualified by the courts, even if he’s found to have engaged in insurrection. So, there’s this statute that actually dates back to the 1860s that says if you are criminally convicted of an insurrection, then you are disqualified from office. That seems like it might meet the majority’s standard, but the majority does not say whether it actually cuts the mustard, and leaves it an open question, not one that’s particularly relevant now, because, for better or worse, special counsel Jack Smith did not prosecute Donald Trump under that statute for engaging in insurrection. Jack Smith made the conscious effort not to pursue that path. And so, again, I just do not see how Trump could possibly be disqualified from this or any future election.

AMY GOODMAN: Mark Joseph Stern, I don’t know if you can answer this, because it doesn’t involve this particular decision, but on the issue of courts’ rulings and him having to pay up, oh, something like $600 million now from dealing with the sexual assault libel case of E. Jean Carroll, over $80 million, over $450 million in that civil case brought by the Attorney General Letitia James, what’s to stop Trump from going to get foreign money, like his son-in-law Jared Trump — Jared Kushner did, getting $2 billion from the Saudi sovereign fund, going to MBS or whoever, Mohammed bin Salman, to say he needs money?

MARK JOSEPH STERN: So, I think the answer is the New York court system has shown more integrity in prosecuting and dealing with Trump’s various civil and criminal charges than the federal system. We have seen New York judges trying really hard to uphold and apply the law. And there are restrictions in New York on who can assist a defendant in helping to post bond, but they aren’t restrictions that often come into play. You know, this law under which Trump was charged civilly, that he now owes $450 million under, it’s not frequently used. We’re sort of in uncharted waters here. And so, I don’t want to say definitively whether the courts would allow him to post bond with foreign money.

What I will say is that Trump has a very sprawling financial network that he has repeatedly used to try to launder money, including foreign money, and sort of cleanse the dirtiness of it and then use it for his own ends. And I could very much see him doing that here. And I just have to say, I think it’s very ironic that as Republicans on the Hill are scrambling to try to accuse President Biden of having some kind of foreign connection to his money, that he’s going through his son to obtain dirty money from Ukraine, all of these unproved allegations, we know that Donald Trump’s own son-in-law, Jared Kushner, as you noted, is obtaining dirty foreign money, and there is a very real possibility that he could help to funnel some of that money up to his father to help him get out of legal trouble —

AMY GOODMAN: Father-in-law.

MARK JOSEPH STERN: Father-in-law, thank you — to get out of legal trouble, and we may never actually know if it happens.

AMY GOODMAN: And, of course, President Trump also just met with the Hungarian Prime Minister Viktor Orbán. I want to thank you so much for being with us, Mark Joseph Stern, senior writer at Slate covering courts and the law. We’ll link to your latest piece, “The Supreme Court’s ‘Unanimous’ Trump Ballot Ruling Is Actually a 5-4 Disaster.”

Coming up, we go to Cairo to speak with the Palestinian novelist and activist Susan Abulhawa. She was just in Gaza. Stay with us.