It’s crystal clear: SCOTUS is not going to disqualify Trump

Editor’s note: The following first appeared in Dorf on Law, and is reposted with permission.

Last Thursday, the United States Supreme Court heard oral arguments in the case brought by Colorado voters to disqualify Donald Trump from running for president again because he engaged in an insurrection in violation of Section 3 of the Fourteenth Amendment. Below are five observations about the case and one angry rant.

One
The court is not going to disqualify Donald Trump. I have been saying so for months, and now it is crystal clear. Most likely, the court will hold that states do not possess the authority to disqualify people running for federal office absent statutory authorization from Congress. There are other legal off-ramps the court might employ, but this argument is the one the justices are most likely to adopt.

No matter how the court reverses the Colorado Supreme Court, Trump, Fox and the right will incorrectly say Trump was exonerated. This will be a lie, because the court is not going to reach the merits of whether Trump actually engaged in an insurrection. This lie will, tragically, be believed by millions of Americans.

Two
Justice Ketanji Brown Jackson had an interesting and somewhat surprising perspective on the case. She seemed to actually care about the text of Section 3, which says the following:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Justice Jackson kept pointing out the obvious problem with applying this constitutional language to Donald Trump. The president is not mentioned in Section 3. Now, this omission was likely unintentional or the drafters thought the president was included as an "officer of the United States," but don't we care more about what they wrote than what they thought? In any event, the omission seemed to bother Justice Jackson quite a bit.

I agree with the many historians who have argued that the people who drafted and ratified Section 3 would never have thought Confederate leaders were eligible to be the president of the United States. Justice Jackson might well decide that the "officer" language in Section 3 encompasses the president. At the end of the day, as I've argued for years, however, the actual text does not matter to the Supreme Court anywhere as much as the consequences of this or that interpretation of the text. Maybe, just maybe, Justice Jackson will be an exception to that rule. The opinion in this case will not be.

Three
Most of the justices seemed to care a lot about the problem of 50 different states using different procedures and reaching different conclusions about whether Section 3 disqualifies Trump.

This concern is legitimate, but as Mike pointed out last week, "it's also a genuine concern in a wide range of cases in which the Supreme Court makes law based on so-called 'legislative facts,' ie, facts about the state of the world that inform how to construe the law, rather than facts that relate just to the one particular case."

The court's past destruction of national voting rights and its decision that partisan redistricting claims are not judicially cognizable suggest that the court only cares about state variances in election procedures when doing so is consistent with the results the court wants to reach, and this is obviously true in the Trump disqualification case as well.

Four
Justice Alito asked a nutty hypothetical about whether a president who gives economic aid to an enemy of the United States has engaged in an insurrection against the United States. This question had no direct connection to this dispute (especially as it is clear the justices are going to duck the question of whether Trump actually engaged in an insurrection). This entire exchange was just Alito being a pugnacious Republican looking to score political points. In the excellent words of Mike's late wife Professor Sherry Colb, Justice Alito is an "unabashed troll."

Five
There was remarkably little discussion of the original meaning of Section 3. There were only occasional nods to historical and textual analysis. For those people who (mistakenly) think the Roberts Court cares more about text and history than previous courts, Trump's potential disqualification shows yet again that for the Roberts Court, values, politics, and consequences count for much more than text, history and precedent. The justices do not, however, admit this reality.

The rant
After conservative and Federalist Society Law Professors Will Baude and Michael Paulsen wrote their 126-page opus arguing that Donald Trump is disqualified under Section 3, I wrote on this blog that their article reflected much of what is wrong with constitutional law.

I observed that the authors failed to even address whether it was a good or bad idea to disqualify Trump, what will be the consequences if the court takes or does not take that step, and what is the right balance between letting people vote for the candidate of their choice and stopping insurrectionists from being elected president. These are the questions our country needs to answer to resolve this hard question.

But the justices talked around these issues and rarely faced them directly during the argument. I expect the final opinion will be replete with legal mumbo-jumbo that will also fail to address the real issues. Maybe the justices' concerns about conflicting state procedures and results fall into the category of prudential and consequential concerns, but as discussed above, the court allows states to impose different election procedures routinely, and I seriously doubt whether the justices will discuss that more-than-obvious inconsistency. Real judges deal with past decisions honestly and transparently. But as I've argued for years, the justices are not real judges.

The justices are likely to rule that Section 3 can only be used by the states to disqualify a person running for federal office after Congress passes implementing legislation. But, of course, such a law is unnecessary when courts enforce other parts of the Fourteenth Amendment, and there is little or no textual or historical justification for such a rule, even if the rule is on balance a good one.

And that's the rub. The Roberts Court has been lecturing the American people in case after case that constitutional law is not about the justices weighing policy concerns but careful analysis of text and history (even if we know those lectures are cover-ups for the justices’ personal values). Well, the argument last Thursday was almost entirely about practical and prudential concerns. The inconsistency is stunning.

The United States of America is facing a substantial political crisis. Trump has shown over and over that he does not believe in the many norms and laws that are crucial to our representative constitutional democracy. But if that's what the people want, and they might, what are the implications of disqualifying such a person from running for or holding office? That is the most important issue, but the court will either totally or largely ignore the question, and that will be yet another example of how the Supreme Court and constitutional litigation will have once again failed this country.