Republished with permission from Lucian K. Truscott IV
The insurrection at the Capitol, during which both the House of Representatives and the Senate came under attack by thousands of followers of Donald J. Trump at his instigation, happened across First Street NE from the Supreme Court. The chambers of some of the justices overlook the plaza on the East Front of the Capitol. That means at least some of the justices and their clerks and their assistants probably watched the assault on the Capitol as it happened.
Washington, D.C. is a small town. The insurrection instigated by Donald Trump on the Ellipse within view of the White House took place just two miles away at the Capitol, and 2.1 miles from the Supreme Court.
The insurrection at issue in the case they heard last Thursday, and the case that will reach them on Monday with Trump’s appeal of his loss in the lawsuit heard by the D.C. Circuit Court of Appeals earlier in the week, happened in the Supreme Court’s neighborhood. And their neighborhood isn’t just Capitol Hill. Their neighborhood is the Constitution. Their neighborhood is democracy itself.
The Supreme Court is intimately connected to the cases concerning the insurrection on Jan. 6 that are before them. They heard the appeal of Colorado’s 14th Amendment ban on Donald Trump from its ballot on Thursday. Next on their docket will be Trump’s appeal of the D.C. Circuit Court decision that found he has no immunity from prosecution for acts he took while he was president. Both cases are centered around what Trump’s lawyer on Thursday euphemistically called “the events” of Jan. 6.
Whether the Supreme Court admits it or not, every word spoken by lawyers on Thursday was about the insurrection that took place across the street from them on Jan. 6, 2021, otherwise an ordinary day of business in the nation’s capital. The justices of the Supreme Court will no longer be able to hide behind the curtains of their chambers overlooking the Capitol building where the insurrection took place that day. For the Supreme Court, when it comes to Donald Trump, they’re going to have to put up or shut up.
This is how close the Supreme Court and the Capitol building are. Before 1935, the year the Supreme Court building opened for business, the Supreme Court met in the Capitol. From 1810 until 1860, with the exception of the five years following the destruction of the Capitol by the British during the War of 1812, the Supreme Court used the Old Supreme Court Chamber in the Capitol. When the Capitol was expanded with new wings for the House and the Senate, the Supreme Court moved to the Old Senate Chamber, immediately beneath the chamber where the Senate meets to this day.
For 125 years, the top court in the Judiciary Branch worked in the same building as the Legislative Branch. That’s how close they were physically. Marbury v. Madison, decided in 1803, had already moved the three branches of government close together legally. Marbury established the principle that the Supreme Court has the power to strike down laws passed by the legislature and signed by the executive, making the Supreme Court the final arbiter of laws and the Constitution the supreme law of the land. As Chief Justice John Marshall wrote in Marbury, “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.”
Marbury created an intimacy between the three branches of government that exists to this day. The president and the House and the Senate all three know that their power is derived from the words in the Constitution, and the Supreme Court determines how the Constitution is applied to what the other two branches do. In the case decided by the D.C. Circuit Court of Appeals ruling that Donald Trump is not entitled to immunity from prosecution for acts he took as president, Marbury was brought up again and again. Marbury established jurisdiction for the court to rule on the question of immunity. Marbury affected the interpretation of executive immunity as it relates to the separation of powers doctrine in the Constitution. Marbury even determined what the Circuit Court in its decision called “functional policy considerations.” Founders such as James Madison—a party to Marbury—and Alexander Hamilton, another signer of the Declaration of Independence and member of the Constitutional Convention, were cited repeatedly by the three D.C. Circuit Court judges in their unanimous opinion that Donald Trump is not immune from prosecution.
It was evident to the D.C. Circuit Court of Appeals that none of the founders contemplated a man like Donald Trump or a political party comprised of his imitators. It’s right there in the Preamble they wrote to the Constitution: they set forth to “form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” What happened across the street from the Supreme Court at the Capitol on Jan. 6 was the opposite of the stated purpose of the Constitution.
Even Trump’s lawyer, Jonathan Mitchell, in response to a question from Justice Ketanji Brown Jackson on Thursday was forced to admit that what took place across the street from the Supreme Court building was not a “normal tourist visit,” as multiple members of the Republican Party who were present at the Capitol that day have called it. Mitchell called it “a riot…the events were shameful, criminal, violent all of those things but did not qualify as an insurrection as that term is used in Section 3.”
Justice Jackson dismissed Mitchell with a curt “Thank you.”
When Jason Murray, the lawyer for the Colorado voters, got up to speak, after he said the honorific words, “May it please the court,” he got right to the point: “We are here because, for the first time since the War of 1812, our nation’s capital came under violent assault. For the first time in history, the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power. By engaging in insurrection against the Constitution, President Trump disqualified himself from public office.”
After Murray concluded his opening statement and said he would “welcome the court’s questions,” the most Trumpian justice, Clarence Thomas, jumped in with a question asking if there were any examples from the time of the writing of the 14th Amendment of states disqualifying “national” candidates from office.
Nothing from Thomas about the ground-shaking allegation that Trump had fomented an insurrection. In fact, the justices seemed to want to avoid the subject of what had taken place on Jan. 6 across the street from the Supreme Court. The nine justices, who frequently argue amongst themselves in questions posed to attorneys for either side in a case, had no significant arguments on the subject of insurrection with the counsels speaking before them.
Other than one question from Justice Jackson pressing Mitchell on whether Jan. 6 qualified as an insurrection, which begat the answer quoted above, the court seemingly didn’t want to touch the issue. They quibbled over the word “officer” for pages in the transcript of the hearing. In fact Trump’s lawyer told the justices that the whole case could be solved in his client’s favor on one issue: “We have an argument, we believe, that is sufficient to dispose of this case just based on the meaning of ‘officer of the United States.’”
Well along in the argument, Justice Gorsuch got into a colloquy with Murray that in the transcript goes on for five pages over the meaning of the words “office” and “officer” in the 14th Amendment. Five pages.
What’s going on here?
Well, the court seems to be looking for a trap door through which they can drop this case and get on with their lives. They might drop the case down the “officer” door, or down the door that says a-single-state-shouldn’t-set-the-standard-for-all-the-other-states.
I realize all nine justices went to law school and studied hard and got good grades. I realize they networked their asses off to get appointed to the court and confirmed by the Senate. I realize they are now the most powerful judges in this land, if not in the whole world.
But the insurrection they seemed so reluctant to talk about happened in their neighborhood. It happened across the street. It was an attack on their Constitution. The one they are tasked with interpreting. The one they are sworn, like other officers of the government of the United States, to support and defend.
What happened to their oaths? What happened to their sense of duty to the law, to the Constitution, to democracy itself? Is this just another academic exercise in who’s more clever, who is quicker on their feet, who is better prepared, who wrote the best brief…in effect, who is going to win?
It’s not. It’s not “just another” anything. Repeatedly, this justice or that lawyer mentioned that section 3 of the 14th Amendment hasn’t been used in 155 years. That’s because all those years the Supreme Court was downstairs from the Senate chamber, none of the justices saw the need to, like Senator Josh “Fist in the Air” Hawley, run for their lives from a marauding horde of MAGA-clad maniacs screaming “hang Mike Pence.” Since they moved across First Street NE in 1935, none of the justices on the Supreme Court has looked out their windows and seen a mob breaking windows and doors of the Capitol building and clobbering police officers with flag staffs and shields and night sticks taken from police officers. None of the justices has had to look at a gallows erected on the steps of the Capitol building.
All nine of the justices know that the assault on the Capitol took place. They saw the gallows. They know that more than a hundred police officers were injured by the mob of insurrectionists. They know that the Metropolitan D.C. police officers were there to protect the Supreme Court from the mob as well as to protect the Capitol.
Donald Trump’s attorney admitted to the Supreme Court that the “events” that took place across the street from the place where they work every day, whatever technical legal term you attach to them, were shameful and criminal and violent. They know all these things because they were there on January 6, 2021. The assault by Trump’s mob on democracy happened in their neighborhood.
Will the nine justices of the Supreme Court tell Trump and his mob, this isn’t allowed? You can’t call an insurrection a “riot” and make it go away. You can’t just take different words and attach them to crimes and make them legal. Will the Supreme Court tell the world that in a democracy, we are all on the same side? We defend each other in this neighborhood. The Constitution’s separation of powers puts the three branches of government in tension, but it also demands we work together, not against each other.
The question for the justices is, do they have the honesty and integrity and courage to ensure that their court and the Capitol across the street remain in the neighborhood of democracy, or will they allow their neighborhood to be swallowed up by the moral vacuum of Donald Trump’s ambition to become not a president but a dictator? The Supreme Court can stop him, but will they?
Lucian K. Truscott IV
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist and screenwriter. He has covered stories such as Watergate, the Stonewall riots and wars in Lebanon, Iraq and Afghanistan. He is also the author of five bestselling novels and several unsuccessful motion pictures. He has three children, lives in rural Pennsylvania and spends his time Worrying About the State of Our Nation and madly scribbling in a so-far fruitless attempt to Make Things Better.
