The Courts Are Sitting This One Out

No One Is Coming to Save Us

An elegant ornament.

The Supreme Court unexpectedly issued its ruling today on whether Donald Trump can be barred from the presidential ballot as an insurrectionist under Section 3 of the 14th Amendment. I guess they wanted to make their decision clear before the Super Tuesday primaries tomorrow, so we would know exactly how irrelevant they are.

The court ruled 9-0 that Colorado cannot bar Trump from the ballot. I cannot say I am all that surprised. The oral questioning in the Supreme Court’s hearings on this case produced a very strong impression that all of the justices were looking for a procedural excuse to get themselves off the hook.

The basic message is that the courts are sitting this one out. When faced with big, momentous questions and the need to take bold steps to protect the American system against a would-be tyrant, they think maybe somebody else should take care of it—but not them.

This is, believe it or not, the actual essence of the ruling. Let me walk you through it.

The Conservative Living Constitution

I have always been less concerned about how the court would rule in this case than why they would rule. The reasons they cite for their decisions create precedents for other, future cases—and I did not think the precedents would be good ones.

So how did they decide this case? There are three decisions outlining the reasoning. The main opinion, which represents the views of five of the “conservative” justices on the court; a concurring opinion by the three “liberal” justices, which agrees with the result but dissents on one aspect of the reasoning; and a curious and very short concurring opinion by one of the conservatives.

In making the case for why the court should uphold Colorado’s decision and bar Trump from the ballot, I broke the case down.

The argument has four parts: that the Fourteenth Amendment is still “legally operative” today; that it is “self-executing,” meaning that it requires no further legislation to be put into effect; that it is not inconsistent with other provisions of the Constitution, such as freedom of speech and the right to due process; and that the term “insurrection” applies to the actions taken by Donald Trump.

The Supreme Court’s main opinion rests its case on the second of these two: that Section 3 is not “self-executing” but requires additional federal legislation to go into effect. And they specifically require federal legislation—i.e., action by Congress.

On the one hand, this decision goes very strictly “originalist” in declaring that “the text of the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States,” that is, the power to enforce Section 3. But its quest for explicit and affirmative authorization ends there, and they declare that “responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.” Their grounds for this is that Section 5 of the 14th Amendment contains an authorization that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” But there is no explicit provision that in giving Congress power to pass enforcing legislation, Section 5 gives that power of enforcement exclusively to Congress.

The concurring opinion by the liberal justices debunks the one factual basis the main opinion gives for vesting this power exclusively in Congress: an out-of-context quotation from one of the framers of the 14th Amendment.

The majority also cites Senator Trumbull’s statements that Section 3 “provide[d] no means for enforcing” itself. The majority, however, neglects to mention the Senator’s view that “[i]t is the Fourteenth [A]mendment that prevents a person from holding office,” with the proposed legislation simply “afford[ing] a more efficient and speedy remedy” for effecting the disqualification.

Notice that the conservatives’ argument does not stop with disavowing the role of the states and of the courts; they go on to specifically restrict Section 3 enforcement exclusively to acts of Congress, foreclosing any other option.

In their concurring opinion, the liberal justices point out that there is no basis for such a restriction.

To start, nothing in Section 3’s text supports the majority’s view of how federal disqualification efforts must operate. Section 3 states simply that “[n]o person shall” hold certain positions and offices if they are oathbreaking insurrectionists. Nothing in that unequivocal bar suggests that implementing legislation enacted under Section 5 is “critical” (or, for that matter, what that word means in this context). In fact, the text cuts the opposite way. Section 3 provides that when an oathbreaking insurrectionist is disqualified, “Congress may by a vote of two-thirds of each House, remove such disability.” It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3's operation by repealing or declining to pass implementing legislation.

You see the problem. Giving Congress and only Congress the power to enforce Section 3 is both redundant and contradictory. If the framers of the 14th Amendment intended to allow Congress to enforce this provision by a simple majority vote, why did they also provide another mechanism for granting amnesty from enforcement by a two-thirds vote?

The majority resolves much more than the case before us. Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that enforcement must operate. It reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course.

Once again, the Supreme Court’s so-called “originalists” are just making stuff up as they go along. Or as one observer put it, “Kind of fun that after all this talk of democracy the justices basically amended the Constitution by judicial fiat.”

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What Would You Say You Do Here?

The liberal justices go on to conclude that Section 3 is actually very important, and somebody ought to have the ability to enforce it. But it’s a big mystery as to who that might be.

Section 3 serves an important, though rarely needed, role in our democracy. The American people have the power to vote for and elect candidates for national office, and that is a great and glorious thing. The men who drafted and ratified the Fourteenth Amendment, however, had witnessed an “insurrection [and] rebellion” to defend slavery. They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President. Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision.

So maybe somebody else could enforce Section 3, the court’s liberals are saying—but not us.

Then there is a very strange concurring opinion from Justice Amy Coney Barrett, who indicates that she agrees with the liberals’ critique that the main opinion is too restrictive. But she declined to explain why she think so, because “this is not the time to amplify disagreement with stridency. 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.”

This is, in a way the most honest opinion, because it states forthrightly that the goal of the justices should be to avoid controversy. Which makes me wonder exactly why we have a Supreme Court in the first place, if its goal is to punt on any constitutional issue that is considered too important.

I can best express this in terms of a meme: What would you say you do here?

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“If Not Us, Who?”

The best rejoinder to all of these questions is a quote I remember seeing from the Founding Fathers, but which is attributed to various sources, from Ronald Reagan to Rabbi Hillel. No matter who said it, it applies: “If not us, who? If not now, when?” If the courts won’t take up their role in enforcing Section 3, why would anyone else?

The practical excuse for this Supreme Court decision is that if states have the power to enforce Section 3, they might do so in a non-uniform way.

[S]tate-by-state resolution of the question whether Section 3 bars a particular candidate for president from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that “the President represents, all the voters in the Nation.” Conflicting state outcomes concerning the same candidate could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualification determinations….

The "patchwork" that would likely result from state enforcement would "sever the direct link that the Framers found so critical between the National Government and the people of the United States" as a whole.

Well, yes, this would be a problem. And supporters of this argument have raised the possibility that, if states were allowed to make these determinations, some would do so arbitrarily and based on frivolous arguments. (There have already been a few attempts to disqualify President Biden on bogus grounds.)

If only the nation had a highest court, one supreme over all others, which could uphold valid disqualifications and strike down invalid ones. But all nine justices make it clear that instead of taking on that responsibility, they want desperately to remove the courts from this issue entirely.

It’s true that enforcement of Section 3 by anyone presents real and substantial difficulties. But the alternative is for it to be enforced by no one. For Section 3 to be enforced by legislation passed by a simple majority in Congress—the conservative justices’ solution—would open it up to more political abuse, not less, since it is easier to do than impeachment. But it also makes such enforcement very unlikely against a candidate who has any realistic chance of being elected. And while the liberals want to leave open that someone else in the federal government might enforce it, there is no one who clearly has the power—other than the court itself, which does not want it.

Here is how I think Section 3 ought to be enforced. State officials, whether in the courts or in the state attorney general offices, should make eligibility decisions through the same procedures they use when deciding any other eligibility requirement. Then the Supreme Court could review those decisions, striking down invalid ones and upholding valid ones.

To see what this would mean in practice, we do not need some crazy, abstract thought experiment. Remember the “birther” claims Donald Trump made against Barack Obama—that Obama was ineligible to run because he is not a “natural born citizen” of the United States. This was a bogus claim. (Obama was born in the United States and to a US citizen, either of which qualifies him as “natural born.”) But let us say that a rogue state official struck him off the ballot on these grounds. Then the case could be appealed, and ultimately the Supreme Court could step in to rule that the decision was without basis.

Now let us suppose that such a disqualification is imposed validly—as it was against Cenk Uygur, a Turkish-born naturalized citizen who has been trying to run a stunt candidacy. This decision could then be appealed, and if necessary, the Supreme Court would have to rule that it was decided correctly. The court would decide that it was procedurally correct, but part of that would be concluding that the decision was not made arbitrarily, that is, that it was done on a factual basis.

This is how the decision on Section 3 of the Fourteenth Amendment ought to have been made. If the Supreme Court had upheld the Colorado decision, it would have given a green light to other election officials and state courts that similar decisions would also be likely to be upheld. And for state official who obstinately continued to include Trump on the ballot, it would be a signal that court challenges to their decisions are likely to succeed.

It is possible, as the Supreme Court anticipated, that there would still be procedural gaps that would produce uneven results—that in some states, there would be no clear procedure in place, either in federal or state law, that would empower state officials to determine Trump’s eligibility for office. But such raggedness in enforcement would simply have to be accepted as the unavoidable condition of enforcing a constitutional provision that had never before needed to be invoked.

And why has it never needed to be invoked? Because nobody has ever pushed our constitutional system quite this far before—not since the Civil War. We are heading into strange and uncomfortable territory and facing dilemmas where either a constitutional provision will be enforced awkwardly or become a dead letter. It is clearly better for it to be enforced awkwardly and imperfectly than for a whole section of the Constitution to effectively be written out of the document by judicial fiat.

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Burning Down the Supreme Court in Order to Save It

But you can see that by engaging in such a blatant act of judicial nullification, the Supreme Court justices actually think they are staying out of politics. Barrett speaks for all of them when she talks about turning the national temperature down.

This is why I kept open the possibility that the Supreme Court would look for a way to punt on this issue. The court likes to avoid anything that seems like they are taking sides on what Barrett calls “a politically charged issue”—even if that means, as in this case, taking a side by default.

You can see this in another recent Supreme Court decision: the choice to review the case in which a federal court denied Donald Trump’s claims of total immunity from prosecution. Let’s be clear: There is no reason for the Supreme Court to hear this case. The issues are so obvious, so cut-and-dried, and so clearly laid out in the recent ruling that no big legal issues remain for the court to review. They should have declined to take the case and let the existing ruling stand, as they often do.

I actually do not expect that they will reverse the lower court. So why take the case at all? Perhaps they are doing this so that they can have another unanimous 9-0 ruling against Trump to make it look like they are balancing out this one. But I think there’s another reason. By taking on this case, they ensure that all of the current criminal cases against Trump, particularly the cases prosecuting him for plotting to overturn the election, will be put on hold for several months. The delay guarantees that these cases will not be able to reach a verdict before November 5. That, in turn, means that no decision made by the courts could be perceived—by this weird logic—as having “interfered” with the result of the election.

You see what I mean? The overriding concern of the Supreme Court is to keep the entire judicial system on the sidelines during an election year. Democracy itself may be on the ballot, but the courts are sitting this one out.

The name for this approach is “institutionalism.” The idea is that they are looking for a legal argument that will allow themselves to decide every case in a way that preserves the Supreme Court “as an institution” by keeping it above ordinary political strife.

But the basic contradiction of institutionalism is that it focuses on preserving the institution by sacrificing the mission the institution was created to accomplish. The Supreme Court’s highest mission is to enforce the Constitution. To not enforce it—to leave one of its provisions conspicuously without any mechanism of enforcement, as they have done here—is to abandon that mission. Then what is the purpose of the Supreme Court? What would you say you do here? Is it to have loud jobs and titles? Is it so Clarence Thomas can go on fancy vacations?

In making these decisions, of course, the justices are actually putting a thumb on the scales of justice in favor of Donald Trump, by granting him a special de facto immunity from the legal and constitutional consequences of his actions.

What this reveals, not for the first time, is the incredible fragility of our American system. It is a brilliant system, designed by geniuses—but it cannot be run by cowards. In Donald Trump, it has found an opponent who has no respect for ideas, principles, or paper barriers. He has spent the past eight years searching out and exploiting every weak spot in our constitutional system. Trump's key discovery is that our system’s protections against a tyrant are merely written on paper. When someone shows no awe at breaking these limits, when he brazenly pushes them as far as they will go, it requires the individuals who run our system to show courage and stand up to stop him. The sad truth he has revealed is how few people will rise to that occasion.

Donald Trump is exactly the kind of man the Constitution was written to protect against—every provision of it, and the document as a whole. But those protections require active vigilance on the part of every actor within the system. I mentioned that I was concerned about the precedent this ruling would set. Well, the precedent is that the Supreme Court will decline to enforce key provisions of the Constitution if doing is politically controversial—which is to say, precisely when doing so is most necessary.

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I have encountered this kind of “institutionalist” mindset in other contexts. It happens in the corporate world and in the think tank world. The main thing I’ve noticed about it is that when people in positions of authority decline to take a stand because that might rock the boat and cause problems for the institution, this just means that the responsibility gets pushed downward to people who are not in authority, who have to take much bigger risks and suffer more severe consequences to confront the problems the “institutionalists” punted.

In this case, here’s what that means. It will be up to us, the people, as voters and as activists—and if things get really bad, as protesters in the streets—to stop an insurrectionist takeover of the federal government. It would be nice if people appointed to positions where they are specifically charged with doing this would that the risks and handle it. But in the end, this is everybody’s job, and we’re going to have to be the ones to do it.

No one is coming to save us. Not the Congress, not the parties, not the media—and not the courts. We will have to save ourselves.