Portside

The Supreme Court justices’ responses last Thursday to the oral arguments over Donald Trump’s disqualification under Section 3 of the Fourteenth Amendment were worse than an embarrassment—they were a disgrace. With the partial exception of Justice Sonia Sotomayor, the members of the Court appeared woefully ignorant of the historical and constitutional issues before them. They took up in detail the ramifications of an eccentric 1869 circuit court ruling by Chief Justice Salmon P. Chase, In re Griffin, that Section 3 could not be enforced without congressional approval, overlooking, except briefly and in passing, that in that case Chase flatly contradicted what he had ruled in another trial a year earlier. They fretted over whether the section’s disqualifications applied to the presidency and vice-presidency as offices “under the United States,” ignoring the explicit evidence from the Senate debates over the amendment in 1866, expressed most directly by Senator Lot Morrill of Maine, that they plainly did.

Over the course of more than two hours of presentations and disputations, gradually it became evident that the justices seem to have no intention of ruling on the meaning of Section 3 and whether it disqualifies Trump. Instead they appear to be casting about for a rationale not to do so. One possibility, which would appeal to the justices across the ideological spectrum, would be to argue that disqualifying Trump would be seen as an act of usurpation, the worst sort of judicial activism, damaging if not ruining the Court’s standing as an independent branch of government. The trouble is that, as I have argued in these pages, both the amendment, interpreted on originalist grounds, and the facts of the case could not be clearer in demanding Trump’s disqualification. The justices cannot avoid reaching that conclusion without appealing to some fictive, extraconstitutional principle. In an effort to preserve the Court’s legitimacy, they seem ready to render it illegitimate. Worse still, they may be hastening the constitutional crisis they think they are heading off.

Trump’s able attorney, Jonathan Mitchell, relied heavily on Chase’s ruling but shrewdly backed off from other strong claims made by Trump’s defenders and even by Trump’s own briefs. At one point, for example, he corrected Justice Ketanji Brown Jackson by pointing out that there was indeed evidence that the framers of the amendment had the presidency in mind. Even as he stuck to Chase’s reasoning, he took pains to remind the Court that it did contradict Chase’s ruling from the previous year. But in these efforts to establish his own integrity, Mitchell also underscored how unfamiliar nearly all of the justices seem to be with the basic questions raised by the case.

Had they mastered the relevant history, the justices would have understood that these seemingly evenhanded concessions exposed the groundlessness of Trump’s claims. They would have recognized, above all, that what turned out to be the basis of Mitchell’s argument—Chase’s eccentric, one-off judgement—is not only extraconstitutional but essentially worthless, as the leading experts in the field have concluded, in part because of Chase’s earlier opinion. Instead, for the most part they persisted in treating In re Griffin as a significant precedent, even though, since Chase made the decision from a circuit court, they have no obligation to do so. Justice Brett Kavanaugh clung to Griffin especially closely as “highly probative” of Section 3’s “original public meaning.” Justice Sotomayor, for her part, pushed back strongly against Mitchell’s reliance on the Griffin case: “a non-precedential decision that relies on policy, doesn’t look at the language, doesn’t look at the history, doesn’t analyze anything than the disruption that such a suit would bring, you want us to credit as precedential?”

*

The Court seems likeliest to find an escape hatch in a point made by several of the justices, including Amy Coney Barrett and Samuel Alito. Justice Elena Kagan stated it most starkly to Jason Murray, the attorney representing the Colorado voters: “I think that the question that you have to confront is why a single state should decide who gets to be president.” Put that way, the question stands to reason; allowing a single state to dictate a presidential election sounds absurd. But the question is both irrelevant and evasive.

Under Article II of the Constitution, the states have the power to decide how electors for the presidency are to be chosen. Candidates for the presidency must meet any number of state-dictated requirements before earning a spot on the ballot. These include whether the candidate is actually qualified to hold the office under the state and federal constitutions. Individual states clearly, then, have the authority to bar any unqualified candidate, including, under the terms of the Fourteenth Amendment, an insurrectionist who previously swore an oath to support the Constitution. To deny the states that authority would be an extraordinary imposition of federal power. In the words of one amicus brief submitted by, among others, the Republican Party’s longtime chief legal counsel, Benjamin Ginsberg, if the Court were to rule “that Colorado was powerless to make a judicially-reviewable, pre-election decision concerning Mr. Trump’s disqualification under Section 3,” it “would turn our federalist election system upside down.”

The phrase “judicially reviewable” is central to the Court’s evasion. Any state supreme court’s decision to disqualify a presidential candidate can, of course, be reviewed by the US Supreme Court. Ever since the John Marshall Court’s landmark ruling in Martin v. Hunter’s Lessee in 1816, the Court has assumed that its authority under the Constitution extends to adjudicating state rulings on federal law. Once it agreed to hear Trump’s appeal on the Colorado ruling, the Court was fully empowered to decide whether that ruling should stand, above and beyond affirming the state’s authority over elections—that is, to decide the meaning of Section 3 of the Fourteenth Amendment.

Murray made the point explicitly in reply to Justice Kagan’s skepticism about whether a single state should decide the presidency: “No, your honor, because ultimately it’s this Court that’s going to decide [the] question of federal constitutional eligibility and settle the issue for the nation.” It appears, however, that this is precisely what the justices have decided not to do. The Court may wish not to be thrust into the middle of a presidential election for the second time in a quarter-century, after the debacle of Bush v. Gore, but the prospect is staring the justices in the face. To decline to meet that responsibility, no matter the fallout, would be a historic abdication.

It would also be an invitation to constitutional chaos. To be sure, public discord would certainly ensue if the Court were to rule before the election that Trump, as an insurrectionist, is disqualified for a second term. But that unrest would in all likelihood be mild compared to what would follow if Trump were disqualified after being elected. The amicus brief spells out several possible scenarios. Were Trump to win the election, it is almost certain that members of Congress would try to have him declared unfit to serve under the Fourteenth Amendment. Since bipartisan majorities in the House and Senate voted in 2021 to, respectively, impeach and remove Trump over the insurrection, it is possible that such an effort might succeed. But even if it failed, the effort would invite serious political instability and turmoil between Election Day and Inauguration Day. By failing to rule now, the Court could lay the groundwork for future catastrophe.

Sean Wilentz is the George Henry Davis 1886 Professor of American History at Princeton. His books include No Property in Man: Slavery and Antislavery at the Nation’s Founding. (February 2024)

The New York Review of Books has established itself, in Esquire’s words, as “the premier literary-intellectual magazine in the English language.” The New York Review began during the New York publishing strike of 1963, when its founding editors, Robert Silvers and Barbara Epstein, and their friends, decided to create a new kind of magazine—one in which the most interesting and qualified minds of our time would discuss current books and issues in depth. Just as importantly, it was determined that the Review should be an independent publication; it began life as an independent editorial voice and it remains independent today. Subscribe to New York Review of Books.