Tuesday Talk*: Judicial Restraint

Colorado lost as a unanimous Supreme Court held that a state cannot disqualify a candidate for president on its own. How did a unanimous, per curiam, opinion, as concurrer Justice Amy Coney Barrett, turn up the heat? The majority didn’t stop at deciding what Colorado could not do, but went a few steps beyond by deciding that pursuant to Section 5 of the Fourteenth Amendment, it was left to Congress to enact enabling legislation to effectuate Section 3, the  disqualification clause that applies to oath breaking insurrectionists, of which no one on the Court questioned.

There are two separate questions raised by the majority’s leap into the abyss. First, should they have gone beyond deciding no more than Colorado was wrong without saying what was right? Second, was their decision, that Section 3 was not self-executing but requires an act of Congress to implement it (meaning that by inaction, Congress could erase it from the Constitution)?

Both Ilya Somin and David French offer some compelling arguments as to why the five were wrong. Here, the question is whether the majority failed to exercise judicial restraint by deciding more than necessary to resolve the case before them.

On the one hand, the Court’s jurisdiction is limited to cases and controversies, and the Court cannot, and should not, decide hypothetical issues. They aren’t briefed. They aren’t argued. There are no fact patterns before the Court and they aren’t necessary to resolve the one and only matter that the Court has taken up. Once a decision ends the dispute before the Court, its job is done. If there is more to be done, it will have to wait for another case to come before the Court where the issue is ripe.

On the other hand, the Court doesn’t really do very much. It has agreed to hear 56 cases this term. Fifty-six. What are the chances that issues left unresolved, questions left open, will get resolved this decade, no less this year, when the Court only takes 56 cases a term? What about the other states disqualifying Trump from the ballot? Some have already done so. Others were waiting for the outcome in Colorado.

If the three justices in concurrence in outcome, but otherwise chastising the five for overstepping their bounds, had it their way, each of these states would have had to engage in litigation to their state supreme court and then seek cert at SCOTUS, where we would go through this circus over and over, state by state, deciding only that state’s decision and nothing more.

To put it in a less controversial context, when Justice Wild Bill Douglas wrote the Brady v. Maryland decision, he played one of the most venal games with criminal defense counsel possible. He gave the defense the right to disclosure of exculpatory material. What he failed to do was provide any mechanism for doing so. When was it to be disclosed? Did it require the defense to demand it or was it incumbent on the prosecution to do so? Who decided what was exculpatory and what happened if it wasn’t disclosed? Does it cost the prosecution a conviction or is it just a reversal and do-over, thus providing no incentive to comply? To this day, these questions remain unanswered and this exceptionally critical right remains in a state of perpetual flux.

Whether this Court’s holding that Section 3 isn’t self-executing, but requires enabling legislation is the right path, at least it is a path. The Court provided guidance to Congress and the states as to what was needed to disqualify a candidate. Had the Court exercised restraint and done nothing more than hold Colorado was wrong, would we have been better off without any clue as to what was right?

While the concurrers disagreed with the majority’s holding that an act of Congress was needed, and there is good reason to question whether the majority’s solution is a good one, was it wrong of the majority to address the pending questions already raised by the other states attempting disqualification or would it have been better to await each state’s process to wind its way to the Supreme Court for resolution, no matter how many election cycles it took?

*Tuesday Talk rules apply.

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