The Supreme Court Once Again Reveals the Fraud of Originalism
By: Adam Serwer (The Atlantic)
S E E D E D C O N T E N T
The justices did not want to throw Trump off the ballot, and so they didn't.
By Adam SerwerIllustration by The Atlantic
It was always unlikely that the Supreme Court, with its right-wing majority, would uphold Colorado's ruling throwing Donald Trump off the ballot merely because he tried to execute a coup after losing the 2020 election. As the unanimous per curiam ruling issued Monday overturning Colorado's decision suggests, a Court made up of nine liberal justices may not have done so either.
That's because sustaining the Fourteenth Amendment's bar on insurrectionists holding office as written would put the justices in the difficult political position of looking like they were deciding an election. Such a thing could undermine popular support for the Court as an institution. It might prompt Congress to act to constrain the Court's power. It could have led to a massive and potentially 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, the least absurd and damaging rationale for avoiding disqualification, one that sidestepped rewriting history or contorting 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, as elite pundits have twisted themselves into pretzels to argue in these past months; they did not decide that the president is not an officer "under" or "of" the United States, as acolytes of the conservative legal movement have urged.
Quinta Jurecic: The Supreme Court is eager to rid itself of this difficult Trump question
Instead, the justices argued that allowing state enforcement would lead to anarchy that could "dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times." Referring to the potential problems that could be caused by individual state enforcement of the prohibition, the justices write 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."
Not that this should have mattered to the Court's originalists, whose commitment to that doctrine supposedly prevents them from deciding cases on the basis of their personal preferences rather than the law itself. But in this case, as the conservative legal scholars William Baude and Michael Stokes Paulsen wrote last year, originalists' preferred interpretive prisms—the plain text of the amendment, how it was understood at the time, the intent of its framers—would have led to Trump being disqualified, a result that, apparently, none of the justices liked.
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 would not do it. The justices did not want to throw Trump off the ballot, and so they didn't. Not only that, but in order to head off the unlikely scenario of Congress trying to disqualify Trump after the election, they said 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 decision politically, it cannot be justified as an "originalist" one; it was invented out of whole cloth—and in doing so, the justices basically nullified the section entirely. As the three Democratic-appointed justices note, "Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that enforcement must operate."
The thing to understand about this case is that, with the exception of the ruling's partial unanimity, it is little different from many other recent big cases in which "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. But the originalism they purport to adhere to is nothing more than 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.
Quinta Jurecic: January 6 is exactly what the Fourteenth Amendment was talking about
Justice Amy Coney Barrett—alone among the Republican appointees in refusing to go along with their unilateral rewriting of the Fourteenth Amendment—wrote separately, and seemed to urge the media to avoid stating the obvious, that the justices were doing 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," what he means is that the Constitution changes to mean what he would like it to mean. They should take home the recognition 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.
Adam Serwer is a staff writer at The Atlantic.
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Please provide your legal rationale for a dissenting vote.
This case was not decided according to the tenets of originalism. why do the conservatives on the Supreme Court lie about it ?
What did the framers mean with Section 5?
There was no insurrection on J6, only a slightly delayed ceremonial function of government. Trump had to be charged, tried, and conviction of insurrection to be tossed off the ballot, not simply accused. That's why the presumption of innocence and due process are the very core of our legal system, and the only way to insure justice.
All nine Justices followed the Constitution and the law in reversing this
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Updated at 6 pm ET on March 4, 2024.
The United States is in a moment of democratic crisis, and the Supreme Court has no idea what to do.
Today, the Court held in Trump v. Anderson that Colorado cannot disqualify Donald Trump from the state’s primary ballot as an insurrectionist, a decision that functionally dooms the existing efforts to bar Trump from the presidency under Section 3 of the Fourteenth Amendment. On its face, the ruling is straightforward. All nine justices agreed that states do not have the power to disqualify candidates for federal office. Looked at more closely, though, that seeming unanimity papers over a roiling disagreement among the justices not only about how best to interpret the Fourteenth Amendment but also about the appropriate role for the Supreme Court in this period of political and constitutional tension.
Over the past several months, a variety of voters and advocacy organizations invoked Section 3 in efforts to block states from allowing Trump onto the ballot. Once the Colorado Supreme Court found that Trump was disqualified, it was inevitable that the Supreme Court would have to take up a case of such overwhelming importance. But the justices, both liberal and conservative, seemed deeply uncomfortable with the idea that they might have to reach a substantive decision on whether January 6 constituted an insurrection, or take an action as dramatic as blocking a major-party presidential candidate from the ballot.
One way to read this hesitation was as an institutional nervousness about touching the hot stove of the political debate over Trumpism, especially at a time when the Court’s political legitimacy has taken a nosedive following a string of far-right rulings. The Court has an interest in maintaining its own reputation, however weakened, as a lofty arbiter of high-minded legal disputes. That concern might make some sense in normal times. But with the authoritarianism of a second Trump term within view, it seems a bit like making sure that the living-room rug is properly vacuumed while the house is burning down.
That same nervousness comes through in the Court’s ultimate resolution of the case. The justices chose to avail themselves of an escape hatch, reasoning that the Fourteenth Amendment allows states to disqualify candidates for state office but not for federal office. This neatly allows them to dispose of the Colorado Supreme Court’s ruling by focusing on a seemingly dull, technical issue concerning the mechanics of the Fourteenth Amendment.
The problem with this reasoning is that it is wrong. Despite the justices’ paeans to history, this line of argument is deeply disconnected from what the historical record shows about the Reconstruction-era understanding and implementation of Section 3. The Court claims that the amendment wasn’t meant to allow states power over federal elections, but, for example, the election-law expert Edward B. Foley has described in The Atlantic how Ohio’s state legislature chose in 1868 against electing a Senate candidate who was arguably disqualified for the seat under the Fourteenth Amendment. In this sense, there’s a palpable desperation to the Court’s ruling: The justices were looking for some way, any way, to get themselves out of this bind, even if their reasoning is profoundly unconvincing.
But as you keep reading, the ruling gets even stranger. The opinion is fashioned as a per curiam ruling, a method the Court typically uses when the justices wish to speak with one voice. Yet it’s packaged with two concurrences—one from Justice Amy Coney Barrett, one from the liberal bloc of Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson—that each, in its own way, underlines the Court’s desperation.
Barrett, in her concurrence, stresses the Court’s unanimity. “The Court has settled a politically charged issue in the volatile season of a Presidential election,” she writes. “Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.” Without intending to, this serves to acknowledge the truth that the per curiam ruling attempts to avoid: The Court was seemingly afraid that a ruling against Trump would thrust the justices into a political dispute, but so, too, does this ruling for Trump. This is, after all, a conservative Court ruling to allow a Republican candidate—who himself appointed three justices—to remain on the ballot despite an attempted coup. Barrett, though, would prefer it if nobody talked about this.
But the liberals’ concurrence shatters Barrett’s insistence that, “for present purposes, our differences are far less important than our unanimity.” The tone of their opinion is strikingly angry, citing both Dobbs v. Jackson Women’s Health Organization and Bush v. Gore —two Supreme Court rulings that damaged the Court’s legitimacy by giving the justices the appearance of engaging in unprincipled politicking. And they warn that “the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”
This sweeping rhetoric is somewhat odd given how small the liberals’ disagreements with the conservative majority are in the decision itself. Kagan, Sotomayor, and Jackson agree that states have no power to disqualify presidential candidates. Their disagreement, rather, is with the majority’s choice to go a step further and find that candidates for any federal office can be disqualified only by an act of Congress that meets a certain set of standards—which, presumably, the Court will now be responsible for evaluating. This is a meaningful distinction. But for the liberals, it is also a relatively nitpicky basis on which to fashion themselves as defenders of Section 3’s “important, though rarely needed, role in our democracy.” After all, if Section 3’s role is so important, why couldn’t these three justices address the issue of whether Trump is an insurrectionist head-on?
One possible reading is that the liberals don’t have the appetite for tackling the constitutional problem of Trump, either. Acknowledging that the Fourteenth Amendment was meant to serve as a protection for democracy against would-be authoritarians—and that Trump himself represents that threat—is a step too far for them as well. They want to signal that January 6 was democratically out of bounds, but they don’t want to have to state it explicitly. Yet this is exactly what the Fourteenth Amendment arguably requires them to do.
Barrett’s insistence on the Court’s unanimity is right in one important sense. Across the political spectrum, the justices’ true interests lie in preserving the power and legitimacy of the Court itself. The same dynamic is at work in the justices’ decision to hear Trump’s claim of presidential immunity, which will have the effect of potentially delaying a verdict in the January 6 criminal case until after the election but reasserts the Court’s role as the ultimate arbiter of weighty legal issues. In Anderson , the conservatives are more aggressive about claiming a role for the Court in future disputes over the scope of Section 3, but the liberals, too, remain unduly focused on preserving the Court as an institution.
The Court wants to be seen as above politics, but it isn’t. Politics has arrived at its door. The Anderson decision achieves, in its own way, a remarkable feat: It manages to expand the Court's own power while also expressing a deep uncertainty about what, in a moment of crisis, that power is actually for.
Nine justices agree on the result and the democrats freak out and demand ten new justices to the left of sotomayor.
that they would freak out and attack the court even after a Unanimous result was probably the most predictable result ever.
Also, an opinion by the Supreme Court Chief Justice within a couple years of the amendment passing explaining the structure of the Amendment is pretty much the gold standard an originalist would look to for guidance if one believed the text is ambiguous, which I don't think it even is. The Court's construction is the only that makes sense.
You can string together all sorts of words and create sentences that are grammatically correct. Much like your quote, they won't actually make any sort of coherent argument though.
It's already a coherent argument
Still no thoughts on Section 5?
So your argument is that until Congress passes separate legislation in regard to this section of the constitution the section of the constitution is meaningless.
You do know don't you that numerous constitutional scholars have written that the 14th amendment Section 3 should disqualify trump ?
is it your belief that these constitutional scholars are not familiar with section 5 ?
I never thought this Supreme Court would uphold Section 3 of the 14th amendment as regards trump, and i doubt very many other people did either.
I haven’t made an argument, but I did read the SCOTUS ruling.
What do they or you say about section 5?
As can be seen , it doesnt matter what the scholars think or say , what does matter is what the nine robed members of Scotus have ruled and in this case the base ruling is unanimous 9-0 no arguing the ruling with that result .
I just read that a certain Sen Raskin (D) Md with a few others is already introducing a bill in the house to start the process to make sure trump can be denied office , I dont see it passing so its a dead ended goose chase . it wont get the needed votes .
I am curious to see if the proposed bill is Trump specific, or if it will be a catch all type bill where just a name has to be filled in for future use .
Way i read the ruling , it might be better if its trump specific and having to do with what some think was done , this of course doesnt rule out the need for a trial with actual charges that congress can act on after a guilty verdict.
other than ruling that states cant make the determination, it seems the ruling also lays to rest if sec 3 is self-enacting or not ,at this time it seems it is not since at a minimum it requires an act of congress to invoke it..
Tomorrow, seek out a podcast of tonights Last Word show with Lawrence O Donnell, or you may find it on you tube. I know it is available as a podcast. On the show a few minutes ago, Lawerence Tribe explains exactly how the Supreme Court misinterpreted section 5 with todays ruling.
It has to do with the congressional action requiring 2/3 majorities in Congress to invalidate section 3, not to "enforce" it. In other words the section is applicable until 2/3 of congress says it isnt. Tribe says the court turned that upside down.
Are you allowed to use Tribe as a source?
You can look at it or not it's up to you
I will, just surprised that you care what he says.
I have no idea what you're talking about
I’m surprised that you see Tribe as a credible expert.
There isn't a face palm big enough to encompass that statement.
From the same legal mighty mental midget that thought Roe V Wade wasn't the Supreme Court making a law up out of nothing; and was against it being overturned.
There’s no argument in the article. It’s just laugh out loud hysterics ( they nullified the entire section!) and unsupported conclusions. There’s no actual argument why the unanimous opinion was incompatible with originalism.
I don' t see that as such a big deal. The fact that since it didn't lose popular support after reversing Roe v Wade, and that Clarence Thomas is tolerated to remain, indicates to me that the SCOTUS could declare that the present White House administration are all disguised aliens from Mars and the American people would still think they have the best Supreme Court in the world. Actually, maybe it's the SCOTUS who are really disguised Martians:
The REAL Amy Coney Barrett and Clarence Thomas:
[China is not the topic, but the comment is meant to harrass a member.]
The mass media and left wing meltdown over this decision was unfortunately predictable in today’s times. Throwing the equivalent of a child’s temper tantrum, who was refused a favorite cookie, they will wail and gnash their teeth endlessly. Throwing a collective fit.
And like a responsible parent we will have to send them to their room to cool off and think better of it. If only ……