Political stargazing should not sway the Supreme Court in Trump appeals
The Court's constitutional role is to arrest not surrender to popular madness or hysteria
December 28, 2023
Letters to the Editor
The New York Times
Re: “The Supreme Court’s Big Trump Test Is Here,” (Opinion by Steven V. Mazie and Stephen L. Vladeck, December 18, 2023, A19)
To the Editor:
The partisan political divisiveness over former President Donald Trump’s herculean efforts to prevent the peaceful transfer of presidential power culminating in the January 6, 2023, violent attack on the Capitol postulated by Steven Mazie and Stephen Vladeck is substantially false. Judges across the political spectrum uniformly rejected Mr. Trump’s 61 orchestrated judicial challenges to Joe Biden’s victory, including several Trump appointees. The overwhelming incriminating evidence of Mr. Trump’s engaging in insurrection and companion criminality on January 6 is from Mr. Trump’s own appointees or loyalists, for example, former Vice President Mike Pence, former Attorney General William Barr, and former lawyers who have pled guilty, Kenneth Cheesebro, Jenna Ellis, and Sydney Powell. Federal judges of all political persuasions—including Trump appointees—have already found more than 600 of Trump’s Stop the Steal foot soldiers guilty of January 6 criminality, for example, seditious conspiracy. Not a single January 6 defendant has yet to escape conviction. After a five-day trial in which Mr. Trump was fully represented, a Colorado state judge found by clear and convincing evidence that Mr. Trump had engaged in disqualifying insurrection on January 6 within the meaning of section 3 of the Fourteenth Amendment. Not a single judge has cast doubt over that factual finding, including all seven members of the Colorado Supreme Court. Not a single judge in a sister state jurisdiction has rejected the insurrection finding on the merits.
Contrary to the insinuation of Mr. Mazie and Mr. Vladeck, enlightened law is not a jumble of political calculations with ulterior motives. It is the duty of the judicial department to say what the law is, as Chief Justice John Marshall instructed in Marbury v. Madison (1803). Lawyers like Mr. Mazie and Mr. Vladeck are political ingenues. Legal training provides no instruction on analyzing the political landscape as the two advise the U.S. Supreme Court do to in deciding a trio of Mr. Trump’s desperate appeals.
Mr. Mazie and Mr. Vladeck cravenly exhort, “[W]hen the stakes are this high and the legal questions are novel, the justices have a duty to hand down decisions that resonate across the political spectrum—or that at least avoid inciting violence in the streets. That is not perverting the rule of law; it is preserving it.”
By that yardstick, the Supreme Court should have refrained from its desegregation decision in Brown v. Board of Education (1954), which begot the Southern Manifesto, the Little Rock Nine, Mississippi Insurrection, the murderous bombing of Birmingham’s 16th Street Baptist Church, Bull Conner’s dogs and fire hoses, and widespread spasms of racial violence.
By that yardstick, the Supreme Court should be celebrated for bowing to racist hysteria and violence in upholding concentration camps for 120,000 innocent Japanese Americans during World War II in Hirabayashi v. United States (1943) and Korematsu v. United States (1944). (The latter was belatedly overruled in Hawaii v. Trump).
Mr. Mazie and Mr. Trump advise the Supreme Court to shy from interpreting section 3 of the Fourteenth Amendment to disqualify him from the 2024 presidential balloting not because such an interpretation would be correct, but to avoid infuriating Trump’s Stop the Steal mob! The Supreme Court sits to arrest violence and the law of the jungle, not to embolden it.
The Supreme Court should decide the section 3 question on the merits and preserve the rule of law as king. Mr. Mazie and Mr. Vladeck would unwittingly destroy it.
Sincerely,
Bruce Fein, associate deputy attorney general under President Reagan and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy
300 New Jersey Avenue, N.W., Suite 900
Washington, D.C. 20001
Phone: 202-465-8728; 703-963-4968 (M)
Email: bruce@feinpoints.co