Eric Segall

Alexander Hamilton explained in Federalist No. 78 the rationale for the Founding Fathers giving judges the power to strike down laws enacted by the legislature. He said the following:

The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

What Hamilton did not anticipate was that much of the Constitution's imprecise language, such as the text of the First and Second Amendments, would be applied by future judges to a constantly changing society. He likely thought the very heavy burden of proof he was placing on those challenging laws (plaintiffs must show an irreconcilable variance between a statute and the Constitution) would keep judges in their place. But, of course, he was wrong, and starting in 1857 with the infamous Dred Scott decision, the justices have been striking down laws at a rate and, in important cases, in ways that few Founding Fathers, especially Hamilton, anticipated.

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In most of these cases, the court is not acting as an agent of the people or the enforcer of a supreme law, but the creator of constitutional rights and limits that simply do not follow from the constitutional text or its history. Dred Scott, The Civil Rights Cases, Lochner, Reynolds v. Sims, Roe, Heller, Shelby County, Seila Law, Trinity Lutheran, Bruen, and SFFA v. Harvard are just a few examples of many country-changing decisions where there is no available argument that the laws invalidated were at an "irreconcilable variance" with the Constitution. Liberal, conservative and moderate justices have all invalidated major legislation without serious and persuasive grounding in the text or history of the Constitution.

And now we have what might be the most important Supreme Court term in American history. The justices have to decide cases concerning presidential immunity (which might be directly relevant to the next presidential election and the very existence of our democracy), gun control, abortion, state regulation of social media, administrative law and the death penalty, among other important cases. (Obviously, a ruling granting Trump immunity would be catastrophic for the country and the court. I do not expect that to happen.)

But how the Roberts court handles the rest of the term will likely impact America in a dramatic and controversial manner. If the Roberts court continues on its partisan course, and decides these cases like Justices Alito and Thomas prefer, meaning the major consideration is always the values promoted by the Republican Party and the Federalist Society, we are heading towards a June that may damage our country considerably, perhaps beyond repair. The current partisan imbalance on the court is taking such an extreme form that it is difficult to find historical analogues.

During the Warren and early Burger court's liberal period, for example, the justices issued numerous landmark opinions that were extremely conservative. For example, in Brown II, the justices told the country to move with "all deliberate speed" to end segregated schools, but that turned out to be almost no speed at all. In 1963, nine years after Brown, Southern schools were still about 98 percent segregated.

After a very short period of judicially imposed desegregation rulings during the late 1960s and early 1970s, the court effectively ended serious efforts to desegregate public schools by saying states did not have to cure segregation not caused directly by formal state laws. But centuries of legal slavery, segregation and red-lining caused segregated housing patterns. To the majority of justices, too bad, so sad. To poor Black Americans, this hands-off attitude was and is a tragedy, dooming many of their children to poverty and racially imbalanced public schools.

In 1959, the court upheld literacy tests for voting. In 1961, the court upheld Sunday closing laws against a religious clauses challenge. These were important conservative decisions.

Skipping ahead a few years, the year the court decided Roe, the justices rejected efforts by liberal groups to classify public school education as a fundamental right and to make poverty a suspect classification for equal protection purposes. The rejection of these efforts had major negative impacts on the poor and people of color.

And in perhaps the most under-appreciated case in American history in terms of its impact, during this period the court also held that plaintiffs must prove intentional discrimination to win an equal protection clause case – a racially disproportionally impact, no matter how large, is not enough. The effect of this holding was to answer 400 years of legally allowable racism with a shrug and say racial impacts alone do not justify judicial intervention. But racially neutral laws in a country with our sordid history lead directly to more racial inequality on the ground. Few lawmakers, even in the Trump era, are foolish enough to leave a trail of intentional racism.

As Professor Justin Driver has said so well, the "scholarly attention lavished upon liberal achievements has regrettably obscured how constitutional conservatism significantly shaped the Warren court era. Examining those underappreciated instances where liberal victories were attainable, but the court declined to deliver, should bring the Warren court into a sharper historical focus."

Although the Rehnquist and early Roberts courts issued some important liberal decisions, those days are over. Since Justice Kennedy retired and Justice Ginsburg passed away, the Roberts court has been on a conservative rampage, overturning Roe, turning the Second Amendment into a super-charged destroyer of reasonable gun reform, ending affirmative action, greatly strengthening the free exercise clause, ignoring and/or distorting the establishment clause, and trying to return to a libertarian, pre-New Deal understanding of the administrative state.

In other words, the justices in a very short time have implemented a substantial part of the Federalist Society's most important policy agenda. Although there have been a handful of moderate decisions, there have been no liberal victories remotely comparable to the Warren and Burger court’s conservative decisions described above. In short, there is no balance at all.

A few years ago, I wrote that the court should return the issues of abortion, affirmative action and gun control to the political process. My personal philosophy about judicial review goes all the way back to Hamilton. The justices should not overturn laws absent clear constitutional error – meaning an irreconcilable variance between a law and the Constitution. That regime, if faithfully implemented, would give me both losses and defeats, given my own values, and I can live with that. I think most Americans could live in a country where they get their way or not based on voting (assuming fair elections). But Americans have a hard time, and they should, being told what to do by elite judges based on their values and politics, not the text and history of the Constitution.

The justices might or might not be sensitive to these concerns. My best guess is that they think they can run the table on their own politics as long as they deny Trump immunity. But I think that reasoning is likely to backfire. There's a constitutional apocalypse on the horizon, and I do not expect We the People to take it lying it down.

(Editor’s note: This piece first appeared in Dorf on Law, and is reposted with permission.)

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.