As everybody knows by now, the Supreme Court released their decision in the Trump ballot case — Trump v. Anderson — just a single day before super-Tuesday. If they had decided that Trump could be kicked off the ballot, it would have resulted in spectacular chaos.

But, as predicted after oral argument, the Supreme Court decided no such thing. If you’re reading this, you’ve probably already heard that the decision was unanimous. At least unanimous as to the result. Hardly unanimous as to the reasoning.

Primarily, the decision was unanimous because all the justices were concerned that if different states started to rule on Trump’s eligibility, the resulting “patchwork” would be unworkable. (Of course, it should be noted, as some commentators have, that the Dobbs decision overturning Roe also has resulted in an unworkable patchwork of abortion laws, but the justices were not so concerned about that.)

Essentially, the court decided that while the states could enforce §3 of the 14th Amendment against state office holders, they could not enforce it against federal officer holders. In order to enforce the insurrection clause against federal office holders — especially the President — the federal Congress needs to act. 

This decision is significant for three reasons:

1. The decision went further than it needed to go.
2. Justice Thomas did not recuse himself.
3. Justice Barrett fretted about the tone of the concurring decision.

The Court went further than it needed to go

It is one of the principles of constitutional jurisprudence that the court should only decide what is in front of it, not what could be in front of it. In fact, the three liberal justices, concurring in the result, quoted the Chief Justice back to him from the Dobbs decision: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.

What did the conservative majority decide that they did not need to decide? They decided that Congress had to act to enforce the insurrection clause. There is nothing in the 14th Amendment that suggests that Congress has to act; in fact, there is reason to believe that it does not need to be Congress that has to act. The other institution that could otherwise act is the federal courts.

The Colorado case was brought in state court, and in part predicated on state law. It could have been brought in federal court and been premised exclusively on federal law. That path has now been foreclosed.

By requiring congress to act, the majority has essentially insulated Trump from any consequences, because everybody knows that this partisan, divided Congress will never act to enforce the insurrection clause.

Case closed.

Justice Thomas did not recuse himself

Once again, Justice Thomas did not recuse himself from an issue where his very own wife was directly involved: promoting an insurrection. Compare and contrast that to Fani Willis in Georgia, where there was a week long hearing to try to establish that Willis should be disqualified from prosecuting Trump because she may have hired her boyfriend to be the lead prosecutor, or in the alternative, may have begun a romantic relationship with her lead prosecutor.

So what?

I’ve already written about why this is a complete side-show and has nothing to do with Trump’s guilt or innocence. 

But we’re not going to have a week-long hearing as to whether Thomas should have recused himself. 

We’re not going to have a week-long hearing about whether the Chief Justice asked Thomas to recuse himself. 

We’re not going to have a week-long hearing to determine exactly how Ginni Thomas was involved in promoting the January 6th insurrection.

Finally, if Thomas had recused himself, he would not have been the 5th vote for the constitutional overreach, but that part of the decision would have been a stalemate. The result would have been the same, but the consequences much more reasonable.

Compare and contrast.

Justice Barrett fretted about the tone of the concurring decision.

Justice Amy Coney Barrett,  who agreed with the liberal justices that the conservative majority decided more than they needed to decide, was unhappy with the tone of the concurrence. “Particularly in this circumstance, writing on the court should turn the national temperature down, not up,” she wrote.

Okay, understood. Let’s take her at her word. Barrett —  who by all accounts is a nice human being — could ensure that the national temperature will be turned down by doing the following two things:

1. Demanding that Justice Thomas recuse himself in cases where his wife is directly involved.
2. Getting the court not to “slow walk” the immunity case under circumstances where it’s universally clear that Trump does not enjoy “absolute” immunity, and every delay makes it less likely that any of the four trials that he is facing be concluded before election day.

That’s it. That’s all that Barrett has to do.

Don’t complain about the temperature on the court — or especially in the nation — if you’re unwilling to stop obstructing justice taking place in a timely fashion.