Dobbs decision | Breaking Big Money's Grip on America

There’s never been anything like the 2024 election year. Every other day I hear a different scenario of how the presidential election could be radically changed.

First, Biden and Trump are the two oldest candidates to ever run for president of our country. One or both of them could die or become incapacitated before election day. Neither looks like they’re in great shape.

Second, the courts could find Trump ineligible to run under Section 3 of the Fourteenth Amendment and knock him out of the race. Section 3 bars anyone who has “engaged in insurrection or rebellion” against the country from holding federal office.[1]

The Colorado Supreme Court has already held Trump ineligible to be on its primary ballot based on Section 3.[2] The former president immediately appealed its decision to the U.S. Supreme Court which will hear oral arguments very soon on February 8^th. Prominent conservative legal scholars who are members of the Federalist Society, an influential conservative advocacy group, agreed that the Court could disqualify Trump under the Fourteenth Amendment. They wrote that Section 3 is “self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress.” They then concluded that Trump could be rendered ineligible for election.[3]

From a liberal perspective, Bruce Ackerman, Yale Professor of Law and Political Science, offered a different angle in reaching a similar conclusion. He contends that “originalism,” that is, the meaning of the Fourteenth Amendment as it was intended at its origin, requires Trump’s exclusion from the race for president.

Ackerman argues that the Colorado court “found that Trump’s support of the Proud Boys, which played a key role in the Jan. 6 riot, represented a paradigm case of “insurrection” as it was originally understood at the time the amendment was enacted.” And, that understanding is supported by “leading originalist scholars and jurists.”[4]

Additionally, Trump’s three appointments to the Supreme Court, “Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett,…proudly proclaim(ed) their adherence to “originalism” at their Senate confirmation hearings.” Ackerman notes it was also their “basis for repudiating Roe v. Wade and the constitutional right to an abortion in Dobbs.”[5]

In effect, these three justices are trapped by their own doctrines. How could they use originalism to deny women the right to an abortion and not apply it to deny Trump the right to run for president? Ackerman believes that “if the three Trump appointees stick to their originalist principles and vote to disqualify him from office, the justices would actually strengthen American democracy and might help ease the country’s sharp divides — while also bolstering a beleaguered Supreme Court.”[6]

Whatever the Court decides will apply to all fifty states, not just Colorado. Given the Colorado presidential primary, along with those in 15 other states and territories, is March 5^th, just five weeks away, the Court should decide pretty quickly. A decision to throw Trump off the ballot would drastically change the election and might even result in widespread protest and violence. That last factor could play a role in the Court’s decision as well.

This is just one of several wild cards in this year’s election. I will explore others in the coming weeks and months.

Bruce Berlin

A retired, public sector ethics attorney, Berlin is the author of Breaking Big Money’s Grip on America (See breakingbigmoneysgrip.com.), the founder of New Mexicans for Money Out of Politics, a former U.S. Institute of Peace fellow, and the founder and former executive director of The Trinity Forum for International Security and Conflict Resolution. He can be reached at breakingbigmoneysgrip@gmail.com.

Subscribe to this blog at https://breakingbigmoneysgrip.com/my-blog-3/. Join the movement to revive our democracy. Together we can save the soul of America.

[1] https://www.bbc.com/news/world-us-canada-66690276

[2] https://apnews.com/article/trump-insurrection-14th-amendment-2024-colorado-d16dd8f354eeaf450558378c65fd79a2

[3] https://www.bbc.com/news/world-us-canada-66690276

[4] https://www.politico.com/news/magazine/2024/01/25/supreme-court-originalism-trump-ballot-eligibility-00137666

[5] Ibid.

[6] Ibid.

While we have left-leaning judges and right-leaning judges, Americans expect all judges to adhere to strict ethical standards. That would be especially true of justices who sit on the U.S. Supreme Court, the highest court in the land. Yet, the nine justices of the Supreme Court are the only judges in the country who are not bound by a written code of ethics.[1]

Chief Justice John Roberts has asserted that there is “no reason” to adopt a Supreme Court ethics code because members of his court consult a wide variety of other sources for guidance.[2] But recent revelations and events are proving him wrong.

The 25-Year Crusade to Overturn Roe v. Wade

In 1996, Rev. Rob Schenck founded Faith and Action, an ecumenical outreach ministry “to top-level government officials located in Washington, DC, throughout the United States and around the world…They seek to base their outreach on a personal relationship with the person targeted.”[3]

According to Rev. Schenck, Faith and Action aims to “win the hearts and minds of those who make public policy.” Its mission is to reintroduce the Word of God into the public debate surrounding legislation and policy matters.” It is a leader in the anti-abortion movement. Although it targets elected officials, government employees, Supreme Court justices and clerks, and other government personnel, it is a 501(c)(3) tax-exempt organization.[4]

As the leader of Faith and Action, Rev. Schenck was an effective, pro-life lobbyist working to influence members of the Supreme Court, especially Justices Alito, Scalia and Thomas. Raising over $30 million, he recruited wealthy donors and encouraged “them to invite the justices to meals, to their vacation homes or to private clubs. He advised allies to contribute money to the Supreme Court Historical Society and then mingle with justices at its functions. He ingratiated himself with court officials who could help give him access.”[5]

Mr. Schenck said “his aim was not to change minds, but rather to stiffen the resolve of the court’s conservatives in taking uncompromising stances that could eventually lead to a reversal of Roe.”[6] Apparently, he succeeded. In the Court’s recent Dobbs case overruling Roe v. Wade, Chief Justice Roberts tried unsuccessfully to limit but still save the constitutional right to abortion. The five justices to his right refused to accept Roberts’ compromise.[7]

Court Leaks Raise Serious Ethical Issues

The fact that the pending Dobbs decision was leaked in advance raises additional ethical concerns. As noted by Newsweek, the leaking of the draft opinion with the names of the five conservative justices who had already signed on to it “made it nearly impossible for any of those five justices to change their minds.”[8]

It was clearly in the interest of Justice Alito, the author of the hardline Dobbs decision, to make certain that none of his fellow conservatives had a change of heart. In fact, there was a similar advanced leak of the Hobby Lobby ruling that requiring family-owned corporations to pay for insurance covering contraception violated their religious freedoms.[9]

That 5-4 majority opinion which adversely affected the Affordable Care Act was also written by Alito in 2014. Rev. Schenck received the advance notice of the decision from a major donor who had had dinner with Justice Alito the previous night. He “used that information to prepare a public relations push“ that promoted his religious right organization.[10]

The Urgent Need for Reforming the Court

It’s bad enough that we have a Supreme Court heavily titled to the right. Now, on top of that, at least one justice appears to be very ethically compromised. In addition, Brian Fallon, executive director of Demand Justice, has called for an ethics probe into right-wing Justice Clarence Thomas’s alleged conflicts of interest in cases involving efforts to overturn the 2020 election in which his wife, Ginni, participated.[11]

Fallon thinks the Senate Judiciary Committee “should immediately move to investigate the apparent leak by Justice Alito.” He believes that “Structural reform of the court, including strict new ethics rules, is needed now more than ever.”[12]

We cannot let this go. A thorough public investigation by Congress is required, and, possibly, impeachment proceedings. Call your senators and representatives. Demand action.

Bruce Berlin

A retired, public sector ethics attorney, Berlin is the author of Breaking Big Money’s Grip on America (See breakingbigmoneysgrip.com.), the founder of New Mexicans for Money Out of Politics, a former U.S. Institute of Peace fellow, and the founder and former executive director of The Trinity Forum for International Security and Conflict Resolution. He can be reached at breakingbigmoneysgrip@gmail.com.

Subscribe to this blog at https://breakingbigmoneysgrip.com/my-blog-3/. Join the movement to revive our democracy. Together we can save the soul of America.

[1] https://slate.com/news-and-politics/2019/01/supreme-court-ethics-code-judges-john-roberts.html

[2] Ibid.

[3] https://en.wikipedia.org/wiki/Faith_and_Action

[4] Ibid.

[5] https://www.nytimes.com/2022/11/19/us/supreme-court-leak-abortion-roe-wade.html

[6] Ibid.

[7] https://www.cnn.com/2022/07/26/politics/supreme-court-john-roberts-abortion-dobbs/index.html

[8] https://www.newsweek.com/conservative-likely-leaked-dobbs-decision-opinion-1755496

[9] https://www.nytimes.com/2022/11/19/us/supreme-court-leak-abortion-roe-wade.html

[10] Ibid.

[11] https://www.latimes.com/opinion/story/2022-11-23/clarence-thomas-recusal-supreme-court-jan-6

[12] https://www.commondreams.org/news/2022/11/19/calls-ethics-probe-follow-bombshell-report-right-wing-attempts-influence-supreme