Will SCOTUS Step Up?

Jennifer Rubin

Opinion

You can bet on the Supreme Court’s abject partisanship

Happy new year! To start us off in 2024, I will look at the Supreme Court’s constitutional conundrum, pick the distinguished person of the week and share my thoughts on two movies.

What caught my eye

By any objective reading of the Constitution, four-times-indicted former president Donald Trump should be disqualified from holding office under Section 3 of the 14th Amendment. The U.S. Supreme Court will have a hard time reversing the Colorado Supreme Court’s decision applying Section 3, but that doesn’t mean it won’t.

The president is undoubtedly an “officer” under Section 3. (That the word “officer” is used to refer to subordinate appointees in the appointments clause in the body of the Constitution is utterly irrelevant to its use more than 150 years later to protect the Union from former Confederates.) In any event, the phrase “hold any office” sweeps in the presidency. (As the Colorado Supreme Court noted: “The Constitution refers to the Presidency as an ‘Office’ twenty-five times.”)

The Colorado court’s evidentiary hearing also confirmed that Trump had “engaged in insurrection or rebellion against the same [the Constitution], or given aid or comfort to the enemies thereof.” Its exacting discussion on pages 97-103 of its ruling reiterated that “the record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable definition, this constituted an insurrection.”

In addition, contrary to Trump apologists, there is no requirement in the text requiring a conviction before the disqualification. Had the framers intended to make that a precondition, they surely would have said so. (The conviction of former Confederates was not a required under Section 3.)

And finally, arguments that the 14th Amendment is not “self-executing” (i.e., requiring an act of Congress) are plain wrong. Individuals routinely bring suits directly under the due-process and equal-protection clauses of Section 1. As with Section 1, Congress may write enforcement legislation for Section 3, but none is necessary.

An honest originalist would be compelled to agree with the Colorado Supreme Court. Our democracy disallows certain candidates for president — e.g., foreign-born people, insurrectionists. As constitutional scholar Rep. Jamie Raskin (D-Md.) said on CNN’s “State of the Union,” “I have got a colleague who’s a great young politician, Maxwell Frost. He’s 26. He can’t run for president. Now, would we say that that’s undemocratic? Well, that’s the rules of the Constitution. If you don’t like the rules of the Constitution, change the Constitution.” If the Constitution is to mean anything, originalists tell us, its text must be followed even if the outcome is politically dicey. (Certainly, allowing an insurrectionist back on the ballot to do it again would be more problematic.)

And yet, few expect the Supreme Court’s right-wing majority, so profoundly lacking in credibility, to follow Section 3’s clear mandate, any more than they expect Justice Clarence Thomas to recuse himself, given his wife’s alleged involvement in the coup plot. How, then, do the justices get out of doing what the Constitution says they must?

First, the Supreme Court could concoct some novel definition of “insurrection” so it can categorize the attempted coup as something less than the “insurrection” Section 3 requires. Despite the Colorado court’s ample historical research demonstrating that Trump’s action fits squarely within the word’s meaning, the right-wing justices could simply make up a new definition. I would not put it past them.

Second, the court could duck the case on the grounds that it lacks jurisdiction to contravene a state’s ruling on qualifications for a primary, essentially putting off a decision until Trump becomes the Republican nominee. That said, very few court watchers expect the majority would countenance a hodgepodge of conflicting rulings, with some states allowing him on the ballot and others not. (By the way, unleashing utter chaos among states is precisely what the court did on abortion, but this court is no model of consistency.)

Finally, a related argument would be that states alone have the duty to determine qualifications. The only federal role comes when Congress can challenge electors. “Under Article II, Section 1, each state is authorized to appoint presidential electors ‘in such Manner as the Legislature thereof may direct,’” Colorado’s Supreme Court noted. “Absent a separate constitutional constraint, then, states may exercise their plenary appointment power to limit presidential ballot access to those candidates who are constitutionally qualified to hold the office of President.” Those enamored with the (rejected) independent state legislature doctrine might agree, but I suspect this partisan majority will not allow any state to exclude Trump from the ballot.

Bottom line:

The partisan majority on the court could duck the question, deeming it premature or a matter for the states, thereby enraging their right-wing patrons, though that is highly unlikely. Alternatively, it could fashion a definition of insurrection to suit its purposes or blatantly defy Section 3’s clear language (e.g., invent a requirement for a criminal conviction). Right-wing justices’ contortions will confirm the utter lack of credibility that now defines the court.

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