The Supreme Court’s All-Male Treachery

It’s been just shy of a week since our Supreme Court decided Trump v. Anderson. In that decision, the Court denied the Colorado Supreme Court the power to take Donald Trump’s name off the ballot in Colorado under Section 3 of the Fourteenth Amendment. That part of the decision—the result—was unanimous.

But in another part of the decision, the Court was far from unanimous. In fact, it was as split down the middle as any nine-member body can be: five to four. It split on lines of gender, with the five males overruling all the females, including the arch-conservative fetus-saver Amy Coney Barrett.

What the five males did was effectively nullify Section 3 of the Fourteenth Amendment for all practical purposes, at least insofar as the present and impending constitutional emergency is concerned.

Let’s call Section 3 the Disqualification Clause, or capital-C “Clause” for short. As everybody knows by now, it prohibits oath-breaking insurrectionists and rebels from holding either state or federal offices.

Before we analyze the split, let’s analyze briefly how strange was what the court did unanimously. It ruled that the States have no part in enforcing the Clause against would-be federal office holders.

That was a practical decision. It will prevent different states from coming to differing conclusions within their own borders. It also might help avoid confusing the electorate and inflaming the deep divisions that already pervade our society.

But the good justices are not supreme politicians. They are not members of a privy council appointed to decide all the fundamental, practical things that a badly broken Congress cannot. They are judges on a court of law.

And what law did they cite for their decision? Not much. They spent the bulk of their decision plowing through history, citing instances after instance in which Congress participated in the disqualification process for federal offices, and none in which states did. Apparently relying on the logical fallacy that absence of evidence is evidence of absence, they concluded that the States cannot so participate. That conclusion rested mainly on history.

The Court was mindful of practical politics: avoiding messes like inter-state conflicts in disqualifying insurrectionists. It’s a pity it hasn’t paid attention to other practical messes, including: (1) women’s loss of reproductive rights and doctors’ inability to assist them (Dobbs); (2) money pervading and dominating politics and expanding for-profit propaganda beyond all bounds (Citizens United); (3) weapons of war turning our streets, clubs and businesses into a true “American carnage;” and (4) many Americans losing the right to vote due to transparent restrictions that Section 2 of the Voting Rights Act would have avoided had the Court not killed it as no longer necessary (Shelby County v. Holder).

Is it just a coincidence that the Court made all these practically catastrophic decisions, making grand messes of our democracy, but avoided only a mess for which a mammoth and irate minority of the electorate might blame the justices themselves? As WaPo columnist Ruth Marcus (a Harvard Law School graduate) noted, the Court’s usual backward-looking search for “original intent” was notably absent in Trump v. Anderson, making it look all the more like an illegitimate political decision by nine unelected judges.

But that was hardly the decision’s worst point. That was just the unanimous part.

Courts are not ever supposed to decide things not brought precisely before them, so-called “hypothetical cases.” That’s what distinguishes courts from legislatures.

This point is explicit in our Constitution. Article III, Section 2 requires courts to limit themselves to “Cases” and “Controversies” brought before them. They cannot overreach and make law by deciding things in the abstract or in purely hypothetical cases. At the federal level, that’s the job of Congress.

But that’s precisely what the five men on the Court did. Here’s the single sentence in which they encapsulated the result of their twelve-page opinion: “[T]he responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.” (Emphasis added.)

The non-italicized portion was the holding with which all nine justices agreed, both male and female: the States cannot enforce the Clause against would-be federal officers. The italicized limitation to Congress was and is entirely gratuitous and unnecessary to decide the case before the Court. That’s why all four female justices wrote separate opinions, concurring only in the result but vehemently disagreeing with the reasoning. They wrote to disclaim this unnecessary “ruling.”

Why the fuss? What’s so important? The explicit limitation to “Congress” excludes not just the States, but both the federal judiciary and the federal Executive.

So the five-man majority was signaling, as clearly as it could: don’t look to the federal courts, which we head. If a case of disqualification under the Clause comes up to us, as this one has, we will duck it, just as we have this one. We won’t even bother to decide whether there was an insurrection and whether the accused would-be office holder engaged in it.

Instead, we will bury our anointed judicial heads in the sand. We will stretch our bony male fingers out to point at the broken, divided and dysfunctional Congress as the only savior against an oath-breaking insurrectionist becoming president. And if the Executive tries to act—in this case with a President who has an obvious personal interest in the controversy—we will again insist that a Congress that can’t pass a budget or provide weapons to oppose the Second Coming of Adolf Hitler do the job.

The reference to Congress as the exclusive enforcer of the Clause is what lawyers call “dictum,” i.e., not a logically or necessary part of the decision in the case. But as long as the Court’s membership stays the same, it doesn’t matter that the four female Justices all dissented vehemently to that exclusive reference in their separate opinions. (Justices Sotomayor, Kagan and Jackson wrote together, and Justice Barrett wrote separately and more briefly.) The five men had the votes, and they’ve signaled unequivocally how any appeal to this Court to aid in disqualifying Trump would end.

The supreme irony is how the Clause arose. Way back in 1866, Congress debated the Fourteenth Amendment, including the Clause. Congress then adopted it, as required, by a vote of more than two-thirds of each House. In fact, the final affirmative vote in each House was at least three-quarters of those present and voting: 33-11 in the Senate and 120-32 in the House. Then three-fourths of the then-existing States ratified it, as our Constitution requires.

That’s why both scholars and jurists generally view the Fourteenth Amendment as self-enforcing, or at least requiring no further action by Congress. It’s part of our Constitution, much like a second Bill of Rights. Some historians consider it a Second Founding.

So Congress had acted. It had acted, as the Constitution requires, by supermajorities in both Houses. It did so after the bloodiest war ever on our own territory, in an attempt to ensure that such a war would never happen again. Yet the male majority on our Supreme Court refused even to engage in enforcing it today, thus inviting our government to sleepwalk into despotism or perhaps a second civil war.

So much for “conservatism.” The five male justices wouldn’t lift a finger to “conserve” what 600,000 Americans had died violent deaths to enact.

It’s hard to conceive of a more wretched example of judicial cowardice and dereliction of duty than what those five male justices did in Trump v. Anderson. They resolutely decided to duck and cover, even against punches not yet thrown. They made it crystal clear that, if we are to avoid sleepwalking into despotism under a deranged insurrectionist, we can seek no help from them.

Whether we keep our Republic, as Ben Franklin noted, is up to the voters now, under such restrictions on voting as the several States may approve. The soldiers who fought the Civil War to prevent this all from happening again—not to mention the three-quarters of the 1866 Representatives and Senators who approved the Fourteenth Amendment—would weep with frustration.


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