The Supreme Court showed it can act with speed by allowing Trump to continue his presidential campaign and punching down states’ ability to disqualify insurrectionist candidates. Indeed, the Court showed it could do so even on hard constitutional questions. Its decision, however, only exacerbates questions about the Court’s reasons for acting—questions that will deepen doubts about the Justices’ even-handedness and freedom from partisan tugs.
Doubts are sewn both by the timing and the content of the recent decision on disqualification. The Court added a date to its ordinary calendar just for the purpose of issuing this opinion, plainly heeding Trump’s demands for resolution before Super Tuesday. It also issued a short (for the Justices) unsigned opinion that bespeaks a rapid work-effort.
But while it heeded Trump’s demands for speedy resolution on the disqualification question, the Court has repeatedly declined to expedite Special Counsel Jack Smith’s request for prompt resolution of the question whether Trump is immune from criminal prosecution. That question is, in truth, much easier to resolve than the disqualification question (in brief, no). Yet the Court has dragged its heels in ways that enable Trump’s efforts to delay the criminal justice system’s operation—perhaps right up to or beyond the election.
We often judge others by how they spend their limited time and money. These decisions about how to allocate scare resources cast direct light on their character. The Justices’ decisions about when to hurry, and when to lollygag, are impossible to understand without attending to the partisan overtones of the cases. Crudely started, it appears that the Court hurries when Trump demands it, and brakes when he says brake.
Substance follows method. When it comes to the substance of this week’s disqualification decision, the unanimity of the bottom line can’t hide an embarrassing series of logical jumps needed to make the issue of disqualification go away for Trump—at least for the time being.
To begin with, the unsigned opinion rests upon the idea that only Congress can say how disqualification occurs. Yet, as the Court itself concedes, the text and history of the relevant constitutional language of Section 3 of the Fourteenth Amendment are plainly inconsistent with that notion.
It is settled history that those disqualified by dint of participation in the Confederacy did not have to await exclusion under a federal statute: They were disqualified automatically. If, as a matter of original understanding, Section 3 disqualification was automatic, why is there a need for Congress to set forth a procedure? It’s not that the Justices don’t know the historical facts: The opinion cites approving a 1868 instance of a putative House member from Georgia, who was treated as ineligible by both state and federal officials without a statute coming into play.
Worse, what the Court goes on to say about how Congress can act is internally contradictory. On the one hand, the majority suggests that “congressional legislation” is needed for disqualification. On the other hand, the opinion picks out and approvingly discusses two cases in which a single chamber of Congress considered whether to disqualify a potential legislator—without relying on any law being passed. So can a chamber of Congress, acting through its election-related functions rather than by enacting a statute, disqualify Trump? Original understandings and history cited approvingly by the Court suggest it can—but the Court at least hints otherwise.
This confusion matters because the Court expressly refuses to say anything about whether Trump did, in fact, trigger disqualification on January 6 or its runup. So the question whether he is a lawful candidate remains undecided. By suggesting that “congressional legislation” is needed to complete his disqualification, however, the Court overrides Section 3’s original understanding—that disqualification is automatic—and leaves the matter in Congress, knowing full well Congress won’t act via a new law. The result is, alas, something of a blueprint for allowing insurrectionists to run for office.
Across these arguments, a supposedly “originalist” Court—including the most vehemently purist of Justices when it comes to method—repeatedly plays fast and loose with the originalist evidence and arguments that they elsewhere treat as binding. They instead lean on arguments from consequences that they mock and pillory in other contexts, such as recent Second Amendment caselaw. If there is one immediate casualty from today’s ruling, it may well be the originalist Justices’ reputations for acting in consistent and principled ways.
What then is going on, if the decision is not the result of the Justices’ legal commitments? A separate opinion from Justices Sotomayor, Kagan, and Jackson decries the majority opinion’s passages on Congress’s role as an effort to “insulate this Court and petitioner [Trump] from future controversy.” This is an incendiary sentence—one that will, once digested, add fuel to the deepening skepticism about the Court’s willingness or ability to stand above the partisan fray.
In effect, the concurring Justices are saying, the Court reached out to decide an issue that was not before the Court—and then it did so in a way that was driven in part by a desire to protect a particular political candidate. Setting aside the fact that this candidate is in court because he tried to derail the lawful counting of 2020 ballots by illegal means, the concurrence is suggesting that the other Justices (all appointed by Republican presidents) are acting to favor the candidate sailing under their partisan flag.
Perhaps as troubling, the concurrence suggests that the Court is doing so because it is conflating its interests in dodging “future controversies” with that of the likely Republican candidate. What’s good for Trump, the majority is said to believe, is good for the Court. It is an identification that is possible only if one thinks that the Constitution itself takes a stand in favor of one partisan faction, and an insurrectionist one at that.
When put alongside its speed and timing, the disqualification decision casts only deeper shade on the Court’s supposed ability to stand above the partisan divide—as opposed to digging in on just one side. However one things the disqualification issue ought to have been handled, it is hard to see how anyone but a partisan absolutist can take comfort from this opinion.
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