The justices did not want to throw Trump off the ballot, and so they didn’t. It was always unlikely that the Supreme Court, with its right-wing majority, would uphold Colorado’s ruling to disqualify Donald Trump from the ballot merely because he attempted to execute a coup after losing the 2020 election. As the unanimous per curiam ruling issued Monday overturning Colorado’s decision suggests, even a Court composed of nine liberal justices might not have done so either.
Sustaining the Fourteenth Amendment’s bar on insurrectionists holding office as written would have placed the justices in a difficult political position, making it appear as though they were deciding an election. Such a move could undermine popular support for the Court as an institution, prompt Congress to act to constrain the Court’s power, and potentially lead to a massive and violent backlash from Trump supporters.
The unanimous part of the decision found that states do not have the authority to disqualify candidates for federal office. This rationale avoided the more absurd and damaging implications of disqualification, sidestepping the need to rewrite history or contort the English language on Trump’s behalf. The justices did not declare that January 6 was not an insurrection or that Trump did not engage in such actions. They did not decide that the president is not an officer “under” or “of” the United States, as some conservative legal scholars have urged.
Instead, the justices argued that allowing state enforcement would lead to anarchy, potentially changing the behavior of voters, parties, and states across the country in unpredictable ways. They wrote that “nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.”
This should not have mattered to the Court’s originalists, whose commitment to that doctrine supposedly prevents them from deciding cases based on personal preferences rather than the law itself. However, as conservative legal scholars William Baude and Michael Stokes Paulsen wrote last year, originalists’ preferred interpretive methods—the plain text of the amendment, its historical understanding, and the intent of its framers—would have led to Trump being disqualified, a result that none of the justices seemed to favor.
Every one of them decided, as transparently as possible in this case, that the text of the Constitution would have forced them to do something they did not want to do or did not think was a good idea, and so they chose not to do it. The justices did not want to throw Trump off the ballot, and so they didn’t. To prevent the unlikely scenario of Congress trying to disqualify Trump after the election, they stated that Congress must specifically disqualify individual insurrectionists, despite such a requirement having no basis in the text. Even if you agree with the majority that this was a wise political decision, it cannot be justified as an “originalist” one; it was invented out of whole cloth, effectively nullifying the section entirely.
As the three Democratic-appointed justices noted, “Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that enforcement must operate.” This case, with its partial unanimity, is little different from many other recent significant cases where “originalism” supposedly carried the day, whether the topic was abortion rights, guns, voting rights, or something else. The conservative justices have a majority, and they may work their will. However, the originalism they claim to adhere to is merely a framework for reaching their preferred result in any particular circumstance.
They felt that a plain reading of Section 3 of the Fourteenth Amendment would lead to chaotic or adverse outcomes, so they not only ignored it but also essentially amended the Constitution by fiat. Justice Amy Coney Barrett—alone among the Republican appointees in refusing to go along with their unilateral rewriting of the Fourteenth Amendment—wrote separately, urging the media to avoid stating the obvious: that the justices were engaging in politics rather than law. “The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” Barrett wrote. “For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”
No. The message Americans should take home from this case is that when Justice Samuel Alito says, “I do think the Constitution means something and that that meaning does not change,” he means that the Constitution changes to mean what he would like it to mean. They should recognize that when Justice Neil Gorsuch says, “Suppose originalism does lead to a result you happen to dislike in this or that case. So what?” he would never allow such a thing to happen if he could avoid it. And they should understand that when Barrett herself says that the Constitution “doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it,” she is not telling the truth, but she would prefer you not point that out.
This case reveals originalism as practiced by the justices for the fraud it actually is: a framework for justifying the results that the jurists handpicked by the conservative legal movement wish to reach. Americans should keep that in mind the next time the justices invoke originalism to impose their austere, selective vision of liberty on a public they insist must remain gratefully silent.
Source: The Atlantic
