Letter from Joseph R. Membrino

Roberts Just Courting Fear?

Of his tenure as U.S. Supreme Court Chief Justice, John Roberts said, “The hardest decision I had to make was whether to erect fences and barricades around the Supreme Court. I had no choice but to go ahead and do it” because, he said, of protest over the draft decision to overrule Roe v. Wade that leaked from the Supreme Court in 2022.

Of course, no one attacked the court after it overruled Roe.

Is the Chief Justice now driven by fear of the MAGA mob? It seems so from the Supreme Court’s February 8 oral argument in Trump v. Anderson.

When Jason Murray, the Colorado voters’ attorney, asked the Court to uphold the state’s disqualification of Donald Trump as a presidential candidate, the Chief Justice replied with concern about tit-for-tat responses by other states resulting in the “daunting consequence” that the nation would be left with “just a handful of states that are going to decide the presidential election.”

Mr. Murray responded that the court has the authority and responsibility to prevent that outcome by rejecting frivolous constitutional claims. The Chief Justice interrupted him. “Well now, hold on. You might think they’re frivolous but the people who are bringing them may not think they’re frivolous.”

With that, the Chief Justice left the impression that MAGA beliefs, let alone lies, threats, or violent actions, are reason enough to side-step constitutional review of Colorado’s decision to disqualify a presidential candidate.

Has any Chief Justice ever made our Supreme Court appear less capable of meeting the moment?

Mr. Murray returned to the constitutional question, arguing that, “There’s a reason Section 3 [of the 14th Amendment] has been dormant for 150 years. And it’s because we haven’t seen anything like January 6th since reconstruction. Insurrection against the Constitution is something extraordinary.”

The Chief Justice pushed back, accusing Mr. Murray of evading the question that Mr. Murray himself was asking the court to decide: “It seems to me you’re avoiding the question, which is other states may have different views about what constitutes insurrection. And now you’re saying well, it’s all right, because somebody, presumably us, [will decide what an insurrection is]. And we’d have to develop rules for what constitutes an insurrection.”

Mr. Murray reassured the Chief Justice that the court indeed can and should decide the constitutionality of any state’s decision that a presidential candidate is an insurrectionist under the 14th Amendment, “just like this court interprets other constitutional provisions.”

As further reassurance, Mr. Murray could have pointed out that the Roberts court had not incited mob violence with its numerous decisions rejecting MAGA’s 2020 election challenges, including those supported by the spouse of a justice sitting that day in judgment of his client’s case.
Chief Justice Roberts and the Supreme Court now have “no choice but to go ahead” and decide whether fear or the Constitution will rule the day.

Joseph R. Membrino
Cooperstown