Watch The Beat with Ari Melber Highlights: March 4

this fast and relatively short ruling which we got today is indeed consequential it draws lines on how this year's election will run it smacks down state efforts to invoke January 6 as a reason on its own to Bar Trump from running at all today the Court ruled quite simply states do not have that power over Federal candidates only Congress does states have no power under the Constitution to enforce a ballot ban for insurrectionists with respect to federal Offices the highlighting there I'll leave

that up for a moment is important because if you understand or remember nothing else about all this it's that states deal with States but states don't have the same power to deal with federal Offices that is what the Supreme Court ruled today and all the justices agreed on that point it was one raised by Obama appoint e Justice Elena Kagan during oral Arguments for this very case I think that the question that you have to confront is why a single state should decide who gets to be president of

the United States haan's question they're slicing through Colorado's argument as well as some of the other technicalities in this case today's ruling built on that angle the justi is noting there is no tradition of state enforcement of an Insurrection disqualification against Federal candidates in the Years following the ratification of this relevant Amendment and they go on to write that that is a telling indication of a severe constitutional problem with States efforts here in law and history

that is just true it was a new unprecedented bid for states to try to take the terrible horrors of January 6 and then site them for a potentially new power that states alone could decide who engage in Insurrection that'd be step one and then two States would bar Federal candidates from those State ballots now we reported on this at the time we spoke to the Secretary of State for Colorado Jenner Griswald and discussed the fact that Federal candidates being barred by States was not a thing so lega

lly it didn't seem like something the Supreme Court would now make a thing in an election year no less now today I'm going to walk you through what happened because some of it hits one way and some of it hits another way and I'm going to do it I promise right now in plain English today all nine justices reach the same judgment so that means the justice is appointed by Trump and the justi is appointed by Obama and the other presidents they all actually shared the same legal conclusion that at a t

ime of great Division and understandable cynicism about whether more and more rulings are based on politics and not any independent law that this kind of ruling shows some cases turn more than on more than who benefits in other words you can't predict today's ruling by whether the judges were appointed by Obama or appointed by Trump or appointed by any other particular party at least in what this ruling does so that is a kind of good news but there is a but and I'm going to walk you through the

other issue tonight and we're not reporting on this because we want to or we welcome some exception to that good news if the decision stopped there if the justices had that sort of shall we say discipline then that's all we'd report on and we'd go right to our guest but there's more because separate from what you might call that good news for the rule of law tonight there are actions and statements by this court which also reveal that that type of nonpartisanship only goes so far so this court w

as unanimous in the outcome that means unanimous in the Judgment but it was not at all United in how to make this ruling in other words what's in the ruling what it actually says how far it goes all nine justices were able to agree to concur in the Judgment indeed some of the democratic appointees made that point by saying we concur only in the Judgment that's how they put it and that is because five of the Republican appointees seized on this state case to go Way Beyond the issue at hand state

power and just add new rules that they made up today for what they say are the required treatment of potential insurrectionists in a federal context now that's a sweeping and anti-conservative kind of judicial reach it is also the kind of thing that these same justices who you see on your screen the kind of thing they claimed they're against they've said that in their nomination hearings and other places and one measure tonight of how far they went in other words if you're watching this and you'

re saying okay the news anchor is saying they went far AR is saying they went far even the Democratic appointees are saying they went far but does that mean they went really far well one measure of this is what Justice Barrett did she is of course a trump appointee she concurred that the states do not have these Powers but flatly called out the majority for overstepping for going beyond the necessities of today's case to limit how the Constitution can bar an oath breaking insurrectionist from be

coming president now some of this debate does get into the weeds and we can get more into the weeds later in the hour if if you want to stay around with me but for right now I'll just tell you the bottom line is four Justice is concurred because they think the conservative majority used this case as a power grab in ways that would currently only help Trump so Justice Kavanaugh went farther than he otherwise would because of who this helps not not because of a Judicial or legal principle that's s

ort of what the other justices suggest in their concurrence and here's why no other candidates have been indicted for January 6 activities no other candidates face any credible criminal legal process about dealing with insurrections so the fact that the court in the majority went well beyond what it had to do on the state power issue and started talking about new federal rules for how to deal with a potential insurrectionist whoever that may be when we all know who that may be it only may be Don

ald Trump and I say that literally it may be Donald Trump or legally it may not in other words we are a nation of laws and there's a criminal process to determine his guilt but there's nobody else around who's saying oh godof good they made new rules making it harder to go after insurrections there's no other uh Federal candidates for president in that position that's one reason today's ruling is unanimous in its whole in but not some kind of purely nonpartisan Kumbaya moment and there's a secon

d reason it comes in the timing and some of the unusual action today let me put it like this I'm here reporting to you on the news tonight about a Supreme Court ruling but did you know the Supreme Court was not even open today it was not in session you may recall the Supreme Court is a special kind of body it's not like the post office it is open in certain seasons and on certain days and other days it's closed and that makes sense cuz they hear cases and they think about cases and then on days

when it's open they either meet or rule today was not one of those days there were no meetings in the court today there were no rulings read from the branch at all indeed I will emphasize it further as you think about what a big court day looks like because you probably caught it on TV before there were no reporters out front breathlessly awaiting the action out of the Court there were no news trucks or crowds like we've seen in active Court days over the years I could tell you I've actually bee

n out front of that court on many days during the big session days and it's a whole scene let alone when the big decisions are expected those are the even big days often at the end of the term it's a whole busy scene that's not today the court was literally closed today and yet and yet this court and its conservative majority decided to do something different to issue a ruling today even though as I just told you they were actually closed the building was closed down so what happened Well turns

out these at least these conservative justices are highly attuned to certain electoral conditions even as they keep claiming otherwise here's other Washington Post reported this aspect today the court clearly has a high awareness of the election calendars and the justices took the unusual step of announcing this opinion on the Supreme Court's website on a day when the court is not in session instead of using it I should say instead of issuing it from the bench later this month they did not use t

he normal day to issue it they will issue it later on the rest of the opinions but today's opinion just went up online on the website now the Washington Post is making an astute Point here and I emphasize it because it seems to pierce the other DC tradition of kind of usually taking the court at its word when it says we don't do politics and we don't think about external factors we're just in here weighing Justice and never looking at which candidate is affecting well this court does do that and

lately it's been doing that a lot again according to the evidence we have like what the post points out today about this unusual way to issue the opinion Court rushed this ruling out on its website to get its answer about the ballot issue out there as super Tuesday hits tomorrow it is a result that the court has already been working towards by fast-tracking this case they heard the original case and publish the decision within one month just as in Prior eras other courts have shown similar hast

ee if for Bush Vore it took under a week from appeal the decision lawyers and judges know deadlines very well they know how they can be met and used and in a space where there's so much talk about uniformity people getting equal treatment we can see how the judges have been very noticeably treating certain Trump cases differently there's the one that made all that news last week Trump repeatedly losing his appeal of his immunity claim those are loser arguments just as I told you Colorado was unl

ikely to win because they had no precent on their side the immunity cut argument has no precedent on its side there's no case you can point to that says that when you're a former president you're an invincible superhero who never goes on trial but the court is still delaying things in that case now if you look at Trump's Federal cool trial it was originally scheduled to begin today Jack Smith has won every round reiterating Trump's not immune like I mentioned but this Court isn't using the Color

ado or bush vigore calendar in fact at this rate the court has added about three more weeks to the hearing of that case from agreeing to hear it to the actual arguments than the Colorado schedule that it used immunity arguments now set for late April now I'll tell you as a matter of law this is what the Supreme Court can do it earns its title as Supreme we don't have an appeal Beyond this if the Supreme Court takes a case that's mostly about a state ballot issue and Issues new guidance or rules

those become the law of the land the final word the Supreme ruling so I'm not telling you that there is some unprecedented judicial crisis today not at all I am telling you that three justices appointed by people like Biden and Obama and even a trump appointe had to call out the court for going that far and I am telling you what could have been apparently a unanimous 90 moment for America wasn't and the reason it wasn't tells us a heck of a lot more than just why Trump will stay on the Colorado

ballot which I told you was probably going to be the result months ago what we learned today has some very profound repercussions the Supreme Court building is closed today but the Supreme Court is open for business this the front page of the big ruling today that will keep Donald Trump on the ballot uh and as mentioned in our opening reporting there was a lot to draw from in this opinion we're joined Now by former Obama acting solicor General Neil kachal and supreme court reporter Nina totenber

g from NPR welcome to both of you uh Neil your thoughts on what the court did and didn't do today well I think the decision after the oral argument already which went terribly were the challengers to Donald Trump I think the decision was expected I think it's wrong because I do think that the 14th Amendment Section 3 applied I agree with conservative Scholars like Bill bod and Michael Paulson that had applied and B Donald Trump but unfortunately the Colorado Supreme Court's decision here was not

really defended in the US Supreme Court and that led the court to get out over its skis today in its legal reasoning for example much of the what the court said today is that the 14th amendment is about restraining state power and States can't uh you know Police Federal elections for disqualification as an insurrectionist and I just think that's flatly wrong on the history because the 14th Amendment had multiple goals one was sometimes restraining the states but another darn it was barring insu

rrectionists from holding off off as what happened in 1868 Ohio and of course the amendment itself says that 2third of Congress can lift a disqualification so there's always a federal remedy against a rogue state or something like that what really I think happened is that people knew Donald Trump couldn't get two-thirds of the House and Senate to remove a disqualification as an insurrectionist so I think it's um an unfortunate but expected decision today what do you think about the message or or

perhaps warning uh from the concurring justices Neil yeah I think you know the Supreme Court um you know works best when it doesn't reach decide issues that it you know cares about its legitimacy the most important book in constitutional law written in the last 100 years by Alexander ble basically said the court preserves its legitimacy by not deciding things and that's traditionally already how the court operates but now as our colleague Melissa Murray calls it we have the YOLO Court that's re

aching out to grab issues and here you know that three judge opinion by justi Soto mayor Kagan um and Jackson said on page two a really Stark warning it said the court today is protecting not just itself but the petitioner they didn't name who the petitioner was but the petitioner is Donald Trump and so what they said there is that the court went out of its way to protect Donald Trump in for future legal proceedings and that to me is a fairly scary Prospect the idea that the Court's reaching out

and deciding momentous issues without the benefit of briefing or concrete case in front of it yeah you mentioned that and I'll say that by way of introduction to Nina uh I I I've been very clear on air with viewers that there wasn't a lot of precedent for States doing this so I I expected it to lose badly and Nina as you know with uh nine in the in the Judgment that's that's pretty clear um and yet we can also learned tonight that the court didn't stop there I mean talk about a win you could ha

ve had what a pruum 90 unified opinion what a nice way to start the week or the year um but it appears that five justices absent Trump Justice appointy Barrett um wanted to get more done uh for their agenda or however they put it or what they say and their view of the law was necessary so uh your view on on all of this Nina well I think that the the answer to this to some extent is in the weeds and I'm not going to go in the weeds except to say that the court not only um said that Donald Trump c

ouldn't be thrown off the ballot which there were lots of liberal Scholars who agreed with that but it also said made law or tried to make law anyway that said um that made it very difficult for any insurrectionist no matter if they'd been convicted of insurrection to be thrown off a ballot because it said that the court said that uh Congress only Congress can M can make this law it can't be judges for example except of course the Supreme Court and it also put very severe limits on what Congress

could do so it sort of made it doubly difficult for for future situations and so I think that the you you do see something of a court that on some issues is very aggressive and you've seen that in other areas where there isn't even a decision by a court and they take the case to review it now that's weird yeah weird is a weird is a nice way to put it uh some would say that that's out it is well you know you've always been a nice person as best we could tell uh in your work but you know uh some

would say that it's uh potentially an overreach or an abuse of the great unreviewable Powers they have um we've all made reference to the weeds here uh for anyone watching wondering what is our aversion to gardening you know what's the deal what are we afraid of um some of the technical and dry details of what ultimately was debated over today don't matter in the main they certainly haven't come up that often in American history which is why we're not going deep into them uh but I will read from

how the uh concurrence criticize the the mostly conservative majority saying look the majority reaches out to decide questions not before us and forecloses future efforts to disqualify presidential candidate under this provision in a sensitive case crying out for judicial restraint it abandons that course and so Nina one way to say this is whether or not people see some potential validity to um potential Val to what the conservatives thought they wanted to get to they clearly didn't need to uh

and because it only benefits as I mentioned in our setup tonight people possibly accused of insurrection it doesn't look like something that's going to matter to that many candidates it looks like something to help this potential uh defendant SL Republican nominee Trump If he if he gets the nomination you know well it also means that uh people who were running for federal office who might have been um in the capital and have broken into the capital on January 6th some of those people run for off

ice and you can't get them off the the if they're running for federal office as opposed to State office you're not going to be able to get them off the ballot and that is something that at least arguably the writers of the 14th Amendment after the Civil War specifically had in mind that they didn't want to have people who were uh deliberately uh threatening the the legitimacy of the United States and its government being able to run for office and that meant Jefferson Davis for example but it co

uld mean Joe Schmo who's running for congress and so that's why it is important and then it's important also because we've got the immunity case coming up and you you can see that there are ways to decide that case in a more limited way and ways to decide that case so as to preserve a lot of a former president's ability to be immune right and that's where you say that whatever one thinks of say the five who ruled today um if the concurrence is at all correct that they have stopped being judges a

nd they are thinking about short-term politics and who may benefit or who to help or help the person who appointed them uh the whole lesson the founders lesson the whole Republic we're dealing with is whether uh even by that kind of short-termism they don't understand that if you super Empower people to come into office to be immune forever if you change that law because you want to help your buddy uh you may find that you're living in a in a dictatorship someday um and not because you meant to

but because you were being so blinded by potential partisanship at least that's between the lines of the concurrence potentially I want to thank n totenberg and Neil Kell I'm over on time go ahead if you have a quick thought I I my quick thought is that this is not at least this is not an overtly partisan decision at least not to the people who made it that doesn't mean that their Gastronomy we view might view as different but I don't I don't think of them as partisan actors but I do think that

they were trying to get rid of this as a question that would come up a lot in front of the court and they very successfully did that in the immunity case there are going to be different questions and there will be different actors and the per the biggest player there one suspects will be Brett Kavanaugh who more than any member of the court has had experience with the president on a daily basis as his chief of staff every day working with George W bush and ever since he's been on been a federal

judge has had very distinct views about um immunities for a president