THE ERODING RULE OF LAW
[ANALYSIS AND OPINION]
[Note: The author is attorney and a practicing member of the Virginia State Bar. ]
Multiple news reports indicate that the U.S. Supreme Court seems willing to overturn the Colorado decision banning Trump from the Colorado ballot. This p] is based on what reporters observed during oral argument before the Court. No decision has yet been rendered, however, based on the questioning of the Justices, it seems that one of the main concerns of the Court is that if Colorado (presumably a “Blue” [or Democratic Party-leaning state]) takes Trump off of its ballot then other Republican-leaning states (or “Red “ states] will retaliate by removing Biden from their ballots throwing the 2024 Presidential election into a state of total chaos. Thus, to many court watchers, in order to maintain an orderly election process, they (the Supreme Court) seems poised to prevent Colorado from removing Trump from Colorado’s ballot.
The problem is that removal of Biden from the ballot in other Red states should not be a concern of the Supreme Court, if the rule of law is upheld and enforced in those states. Why? Because Biden has not been charged with, nor has it been suggested that he committed insurrection, which is the legal principle that permits states to bar insurrectionist candidates from public office. This is emphatically not the case for Trump. In Trump’s case, there was an actual civil trial in Colorado, where the trial court expressly found that Trump committed insurrection. The point is that if attempts are made in any Red-leaning state to remove Biden, they would fail if the rule of law those states is upheld because there would be no legal basis to remove Biden from the ballot in those states. So, in short, by worrying that Red states will remove Biden from the ballot is only a worry if the courts in those states do not uphold the rule of law and play politics like the U.S. Supreme Court might very well be doing if it overturns the Colorado ruling based on what would normally be some very speculative and remote the fear that other courts will not uphold the rule of law in their own states. Merely making this supposition and/or expressing this fear is simply startling and shows how much Trump and MAGA have instilled fear and infected public discourse, and now, apparently even the legal analysis of the United States Supreme Court. Never has the legal community ever seen a court suppose that other courts will not uphold the law.
Moreover, and even worse, the Supreme Court would be setting an extremely bad example of, and provide a pretext, if not a precedential “stare decisis” basis, for other courts not to uphold the rule of law in the future if it overturns the Colorado decision based on a very speculative fear that Red states may engage in removing Biden from their ballots for what would either be an unlawful reason or no reason at all.
By overturning the Colorado case, the Supreme Court will push this country yet another giant step closer to a country ruled by the powerful and/or the mob rather than by firmly held legal and constitutional principles. And the truly scary part is that rule by force and not by law is a fundamental difference between an autocracy (that is, a dictatorship) and a democracy. Dictators rule through the use of power, force, intimidation and coercion. Mob rule is also another type of coercive rule by power, force and intimidation, albeit a less formalized form of it. And mobs have a strong tendency to make highly emotional decisions in the heat of the moment. Mobs are not always rational and they don’t always care much about important things like due process of law or the Constitutional and/or legal rights of the folks that they are angry with.
The Supreme Court needs to ask itself: How, in the future, can whistle blowers, and folks,like those police officers who fought off the violent and seditious protesters at the U.S. Capitol on January 6, 2021 (to ensure a calm and lawful electoral vote count for the most important office in the World), be expected to carry out their duties when it matters most for democracy? What about whistleblowing witnesses in future cases who want to report the illegalities and political improprieties of powerful politicians and government officials going to find the courage to do so, especially if the powerful political figures and officials have shown a very public tendency to seek revenge? Similarly, how will whistleblowers in the future feel safe from the very real threats posed by supporters of wayward but powerful political figures who also seem similarly inclined to use violence and intimidation to silence whistleblowing reports of wrongdoing?
February 11, 2024
David Dixon Lentz
© Copyright 2024, David Dixon Lentz, All Rights Reserved.
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END NOTES
In another article we discussed the Colorado case. See link below:
As such, we won’t repeat points made in that article. However, if our more recent article today, reflects the opinion of the Supreme Court:
(1.) It’s interesting and very important to note that Presidential elections have traditionally been run by the States in accordance with laws of the respective states and not in accordance with federal law . If federal elections should be regulated exclusively by the federal government then there should be a statute or Constitutional provision to that effect. However, there is no such statute that gives the federal government the right to control the contents of a state ballot for the election for U.S. President. Traditionally, state law has controlled which candidates go on the ballots for U.S. President. Thus if the SC overturns the Colorado case, it would be creating important new powers in the federal judiciary to replace the states with respect to the location of ultimate power to regulate Presidential elections. Such federal judicial power has not heretofore existed, and many might seriously question its propriety absent the adoption of some new federal election statute.
(2) Given ( 1. ) the Supreme Court would be playing politics, and not applying (upholding) existing law, in one of the most important cases in this country’s history,
(3) It has to be reiterated here that now-retired former Fourth Circuit Court of Appeals Judge, J. Michael Luttig (at one time the very highly respected and much followed legal authority for all conservative-leaning judges including many Justices on the Supreme Court), basically opined that, in his opinion, the Supreme Court had no choice but to permit Colorado to remove Trump from the ballot given the very plain and simple language of the Fourteenth Amendment which essentially prohibits candidates who have engaged insurrection from holding public office. In this regard, one very important point must be remembered. The trial court in Colorado held an evidentiary hearing on the issue and specifically found that Trump had engaged in acts constituting insurrection. That makes the Colorado case very different than any other case anywhere else in the country. And lawyers know well the concept of “res judicata” which in essence means the point of whether Trump committed insurrection has been litigated and determined and is settled, at least in Colorado. Thus, as a matter of state’s rights, many might argue that, under our federal system, Colorado has a right to ban Trump from its ballot under the very plain language of the Fourteenth Amendment banning the election of candidates who have engaged in insurrection.
Some authorities have made the reasonable argument that the Fourteenth Amendment requires that a candidate like Trump to actually have been criminally convicted of the crime of sedition or insurrection before he can be disqualified from holding office. However, the plain language of the Fourteenth Amendment itself does not require that a state criminally convict a candidate before either disqualifying him from office or removing him from the ballot.
We make the foregoing points not to argue for or against the idea of transferring more power to the federal government to regulate federal elections, especially for that of President, but to point out that overturning the Colorado case would very probably require the Supreme Court to create some new and very important judge-made law which would involve a shifting of power to the federal judiciary without any supporting legislation allowing it to do so from Congress and the President.
Judicial attempts at avoiding societal and governmental chaos are indeed very noble and perhaps even necessary if this nation is to survive. However, let’s not kid ourselves. Were the Supreme Court to overturn the Colorado Supreme Court, it would probably be engaging in judicial activism on a grand scale—the type of scale that traditional conservatives have historically railed against when more liberal courts issued progressive decisions in busing and in civil rights cases back during the Warren Court during the middle of the last century. And, worst of all, on some level the rule of law will have suffered a significant setback, especially if it also allows a would-be authoritarian to get elected and come to power. Given the events of January 6, 2021, one would have to wonder if such a person would ever leave power voluntarily.
How soon everyone forgets when it’s convenient to do so!