The reactionary Supreme Court is in a quandary as to how to decide the Trump disqualification case while retaining whatever credibility it has left. The court just voted to review the Colorado Supreme Court decision, but it really didn’t want to.
Who is on the ballot for president is a political question and — although the court has this term wandered into two Trump cases, two abortion cases, one Jan. 6 obstruction case, five First Amendment/social media cases, five administrative law cases challenging the depth of the “deep state,” two major gun cases, a racial gerrymandering matter, ozone pollution rules and three property rights disputes — it normally doesn’t like to get embroiled in the political thicket.
The ethically challenged court is already compromised in this case. Justice Clarence Thomas, unless he recuses himself, is compromised — his wife is identified with the insurrection of Jan. 6. Justice Brett Kavanaugh is compromised; Trump’s lawyer claims Kavanaugh owes Trump big time for his appointment, implying that the former president has him in his pocket. After all, Trump believes we are a government of men, not of laws.
But the Supreme Court had to grant cert. We can’t have electoral chaos in the country, with some states keeping Trump on the ballot and others kicking him off. America needs a uniform national rule.
The six Republican-appointed justices hold themselves out as “originalists,” textualists and strict constructionists in their doctrinal interpretation of the Constitution. If they were honestly true to their faith, they would disqualify Trump in a unanimous per curiam opinion.
The text, structure, history and original understanding of Section 3 of the 14th Amendment disqualifies Trump flat out.
So what is the off ramp? The Supreme Court could dispose of the case by concluding that there is insufficient evidence that Trump “engaged in insurrection.” But such a holding would defy credulity. We didn’t need a five-day trial in Colorado to determine that by “clear and convincing evidence” — we all saw it on national television. It is proved beyond any doubt in tweets, speeches and conduct. Trump is disqualified from holding office.
Section 3 does not refer to the president as an officer who might be disqualified, but the history of the 14th Amendment makes clear that the framers intended Section 3 to apply to the president. And what sense does it make that an insurrectionist who had taken an oath so he could be a federal land assessor would be disqualified, while an insurrectionist who aspired to hold the highest office in the land would not? Moreover, one thing is clear from the history: The framers of the 14th Amendment did not want Jefferson Davis to become the president of the United States.
The court could say that the presidency is not an “office ... under the United States,” and is not an “officer of the United States,” but such a conclusion doesn’t pass the amorphous standard that Justice Elena Kagan has called the “laugh test.” As the Supreme Court of Colorado noted, the Constitution refers to the president as an officer or as holding office 25 times.
They could say that Trump previously took the constitutional oath to “preserve, protect and defend” the Constitution, not to “support” it. But 19th-century dictionaries make “defend” synonymous with “support,” and since Trump wants to terminate the Constitution anyway, his argument makes a distinction without a difference.
The justices could say that the 14th Amendment is not self-executing, that it requires an act of Congress to disqualify an insurrectionist oath-taker. But this would be contrary to the structure and history of the Civil War amendments (13th, 14th and 15th). It would be an absurdity if after the Constitution freed the slaves or desegregated the schools, Congress could reverse the Constitution’s limitation on the states, and impose slavery or Jim Crow on the rest of the country.
Section 3, moreover, provides that a two-thirds majority of both houses can remove the disqualification. What sense would it have made to require a bare majority of Congress to impose disqualification, but require a two-thirds majority to remove it? And doesn’t the removal clause imply that someone else, like a state official or a state court, could disqualify an insurrectionist from the ballot, but a two-thirds majority of Congress would be needed remove the disability?
Then there is the latest “kick the can down the road” argument made by some amici (“friends of the court” who submitted a brief), led by former Trump Solicitor General Noel Francisco, that Section 3 disqualifies the insurrectionist from holding office, not from running for office, so that states could not bar Trump from the ballot unless and until he is elected, in which case, he could not take the oath of office. This would mean that a sixteen-year old or a foreign-born person or the twice-elected Barack Obama would be entitled to appear on the ballot for president — they just couldn’t serve, if elected. I have visions of Chief Justice Roberts refusing to administer the oath of office to such a tainted president-elect.
Finally, there is the argument that it is just bad policy, that it is undemocratic to deny the ballot to an insurrectionist. But this is precisely the argument that the originalists have time and again rejected. As their patron saint Justice Antonin Scalia said, the Constitution is not what I would like it to mean; there is no such thing as a living Constitution. The Constitution is dead. It means what was the original understanding of the society at the time.
Undemocratic? That is precisely why Section 3 was framed to prevent someone like Trump — who autocratically sought to take the decision from the people — from holding office.
The Supreme Court will hold oral argument in the case on February 8, and, despite their reactionary inclinations, they will have a hard time getting out of this one and coming up with a decision that will pass the laugh test.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
