Abraham Lincoln, who was a very good attorney before becoming president, once warned fellow practitioners not to assert in their legal papers “more than you ought, lest you have to prove more than you can.”
Simply put, when engaged in the legal process, less is more or, better yet, more can be a morass.
Lincoln’s admonishment is the foundation of the doctrine of judicial restraint, a tenet that ordinarily strives to decide cases narrowly on the issues raised in it and cautions against sweeping rulings that go beyond the needs of the particular dispute.
Running red
But the majority of justices on the U.S. Supreme Court strayed from that precept in deciding March 4 in the Colorado ballot exclusion case that neither it nor any other state can bar former President Donald Trump from the ballot under the “engaged in insurrection” clause of Section 3 of the 14th Amendment. Five of them, all purported subscribers to the judicial restraint principle, ran right through the red light of restraint in their decision.
The core of the ruling was that states lack “authority” under that provision to disqualify a candidate for federal office. But the majority, composed of five of the six conservative, Republican-appointed men, were not content to stop there. Plowing through the red light of restraint, contrary to the limitation of the lore of Lincoln, a founder of the Republican Party, the high court five articulated a laborious and impractical way to invoke the “insurrection” clause.
The only way to do so, the quintet declared, was for Congress to enact specific legislation directed at a particular individual, which would presumably necessitate a time-consuming highly partisan proceeding to decide if an “insurrection” occurred, whether the particular individual “engaged” in it, and what sanction, if any, is appropriate that would probably be doomed if either branch of Congress were to be controlled by the party to which the accused belongs.
In effect, the justices gave a free press to future insurrectionists (and the past one, too) by effectively eviscerating the “insurrection” disqualification clause.
While the ruling overturning the Colorado ballot ban was unanimous, its reasoning was not identical even within the right-wing ranks. The three liberals, all Democratic women appointees, agreed with the outcome to avert ballot “chaos” across the land, took the occasion to blast the ex-President as an “oath-breaking insurrectionist,” a characterization equally unnecessary to the determination.
But it was Justice Amy Coney Barrett, a card-carrying member of the conservative consortium, who came closest to getting it right. Calling for calm, rather than invective, she critiqued the majority opinion with Lincoln-like logic for exceeding the bounds of the issue before the tribunal and creating a virtually insuperable “insurrection” obstacle.
Razor ruling
What accounts for the ruling by these self-anointed proponents of judicial restraint?
There are many possibilities, but the principle of Occam’s Razor, named after the 14th Century English philosopher, might apply: if there are multiple explanations for a phenomenon, the simplest one is usually correct.
In this case, the simplest one may be that they want the former 45th president to become the 47th.
It’s not the first time the right-wing wrecking ball that is the current high court has diluted or decimated Constitutional rights it doesn’t like. The Dobbs v. Jackson Women’s Health Organization case two years ago, which nullified the Constitutional right to abortion, as established 49 years earlier in the Roe v. Wade decision authored by Minnesota’s Harry Blackmun, was another illustration of the tribunal shrinking long-standing Constitutional provisions into virtual oblivion.
Of course, it’s not always that way. Two other Constitutional provisions have been treated with extreme deference. In nearly every decision going back close to two decades to the onset of Chief Justice Roberts’ appointment, the tribunal has upheld theological-based positions under a remarkably expansive view of the Freedom of Religion clause of the First Amendment, allowing public funding of parochial schools, religious school tuition and school prayer.
Similarly, the Second Amendment right to “bear and keep arms” has been treated with undue breadth in striking down safety-geared measures that, in the court’s view, are inconsistent with “history and tradition.”
So, when the Roberts Court venerates a particular Constitutional provision, its proponents prevail; when it doesn’t, they don’t.
Minnesota matter
It might not have happened this way if the merits of the “insurrection” matter had been addressed in Minnesota, where the state Supreme Court four months ago decided not to decide the ballot bar issue.
The jurisprudence in this state, derived from the 2014 case entitled Walsh v. U.S. Bank, follows the lore of Lincoln. The decision, written by Justice David Lillehaug, endorsed the principle known as “notice pleading” — a practice in which lawyers need only provide a short, concise description of a case, devoid of bloviation. In doing so, lawyers are encouraged to be Lincoln-esque in avoiding pleading “more than they ought” in order to avoid being hung on their own over-pleaded petard.
But the five-member high court majority in the Trump ballot case deviated from this approach. In getting far out in front of their skis, something Minnesotans know a bit about, they addressed an issue not before them — the required procedures for disqualification of an insurrectionist — and in the delivery made the clause virtually a dead letter.
For the misguided idealists who brought the cases in various states — Colorado, here in Minnesota and a handful of other places — the outcome was not only disappointing but an illustration of the old saw, “don’t ask for something you don’t want, you might get it.”
Marshall H. Tanick is a constitutional and employment law attorney with the Twin Cities law firm of Meyer Njus Tanick.
