Unilateral Disarmament after Colorado's Trump Disqualification Case: What Could Go Wrong?
"And if you don’t do this and if I don’t do it, one of these days you and I are going to spend our sunset years telling our children, and our children’s children, what it once was like in America when men were free." That is the closing sentence of a speech delivered by the former actor Ronald Reagan as he transitioned into a political career in the early 1960's. What is the "this" and the "it" that his listeners and Reagan were required to do, lest Americans lose their freedom? Why, oppose the creation of Medicare, of course! You know, socialized medicine, the road to serfdom, and all that.
In the decades since Reagan spoke those words, they have become infamous -- even mockable -- because of their context, purpose, and the overwrought parade of horribles to which they referred. Even so, there are times when freedom truly is at stake, and I recently could not help but think about the larger question in the dystopian future that the writers of Reagan's line invoked: After the people of a country lose their freedom, what will the people who might have been able to stop it say to justify what they did (and did not do)? It is a serious question, designed to focus minds in the here and now on the true stakes in a battle that is not yet lost. Just because Medicare was never a threat to freedom (and was in fact a great idea) does not mean that nothing is a threat to freedom or, more to the point, that what we face today is somehow benign.
Along with almost everyone else, I expect that the US Supreme Court's six Republican appointees will overturn this week's ruling by the Colorado Supreme Court, which held that Donald Trump is not qualified under the Fourteenth Amendment to serve as President (or in any of the other offices to which the disqualification clause applies). To a certain degree, it is worrisome to see so many of us preemptively throwing up our hands and saying, "This Court will never let that stand." After all, such fatalism tells those Republican politicians in robes that they can do what they want to do, and everyone will then say, "Well, what did we expect?" It would be better if the justices felt real pressure to take this seriously, to be intellectually honest and ideologically consistent, and to uphold their oaths above their partisan affiliations. But we do not live in such a world.
This is, then, yet another consequence of the continuing degradation of legal and public discourse. A Court that, just in this century alone, has installed a Republican in the White House, upended Second Amendment jurisprudence by ignoring the text of that amendment and relying on made-up history, eviscerated the Voting Rights Act, overturned Roe, and on and on and on, has lost the respect of the public. In so doing, however, it has made it seem normal to expect the Court to be fully partisan.
To be clear, I continue to believe that, as David Frum articulated the point in a recent piece in The Atlantic, it would in fact be better for Republicans as a purely partisan matter to rid themselves of Trump. In this case, that means that the Court's Republican appointees could do their party a favor by holding that Trump is disqualified from running. Maybe that thought will finally win the day -- as it did not in the 2021 Senate impeachment vote or the other opportunities that Republicans have ducked over the years -- but the more likely outcome is that they will instead say that the Republican front-runner can be on the ballot.
That is bad, but there is at least a way for the rest of us to take the world-weary approach without making ridiculous substantive arguments. "They will not do the right thing, because they are who they are" is one thing. "In fact, Trump should win this case" is quite different. And as reliably as the sun rises in the East each day, the guardians of the timid center have come forth to tell us that Trump should win his appeal.
I will focus here on two pieces in today's Washington Post, one attributed to the editorial board of that newspaper, the other written by their former deputy editorial page editor, Ruth Marcus. There is a reason that the term pearl-clutching has been so heavily used in recent years, and it has everything to do with this kind of nonsense.
These are the people, after all, who take to their fainting couches and yell "court packing" when Democrats even think about ways to unpack the Court. More recently, Marcus shamefully slimed Fulton County DA Fani Willis, saying that Trump should not have been indicted in Georgia because of Marcus’s "concern about piling on," saying that "[a]t some point, it becomes unfair —
yes, even to Trump." That assertion from only four months ago has not held up well, to say the least, given the guilty pleas and the gathering of further evidence against Trump that have already resulted from the state's case.
Again, however, the point here is that these supposed liberals always seem to find a way to say that we should stand by while the country is being destroyed, and they have come through again. The Post's editorial board relies on a slippery slope argument, saying that "the potential for abuse is ample," concluding: "In the absence of clarity, a body of unelected officials should be reluctant to prevent the country’s citizens from choosing an elected official to lead them. The Supreme Court, hopefully, understands that."
To be clear, then, when the law is not unambiguously, one hundred percent clear (and I am not bothering here to argue against the board's unconvincing caviling about the supposed lack of clarity), the Court's decision about whether a person is qualified under the Constitution to be elected President is for some reason totally clear. Why? Because reasons. But courts are there to determine what the provisions of the Constitution mean, and if the best reading (even if it is not the "Is he over 35 years old?" easy call) is that this man is not qualified to run, the Court should not say, "We're unwilling to decide." Hard cases can make bad law, but easy outs definitely make worse law.
The editorial board says amusingly that the question of whether the disqualification clause applies to a would-be President is difficult, but "[h]arder still is the question of whether Congress needs to pass legislation for Section 3 to take effect." They then rely entirely on one of the Colorado Supreme Court's dissents, which "explains why that’s a tricky one. Chief Justice of the United States Salmon P. Chase ruled that such a move was necessary just a year after the 14th Amendment’s 1868 ratification."
And that is all they have on that point. Marcus's piece also cherry-picks that argument and says that it "would be my preference" for the Court to rely on it exclusively: "[T]he justices have the benefit of a decision by Chief Justice Salmon P. Chase in 1869 — the year after the 14th Amendment was ratified — that Section 3 requires enabling legislation." She does admit (somewhat indirectly, to be sure) that that was not a Supreme Court case but an opinion handed down by Chase while he was sitting on a lower-court case, which means that the case is at best potentially persuasive authority. Even so, she relies completely for this part of her argument on Chase's finding that "legislation by Congress is necessary to give effect to the prohibition, by providing for such removal."
Why is Chase an authority on this question? Was he in Congress when the Fourteenth Amendment was being drafted, making him a Founding Father of some sort? No, he was already Chief Justice at that time, which means that his statement about legislation being necessary is not only unsupported by constitutional text but was merely used to justify Chase's decision not to overturn the conviction of a formerly enslaved Black appellant who had been tried in front of a judge who was a former Confederate.
That is rather thin gruel, I must say. Even so, Marcus offers that and other equally weak "what if/maybe/but gee/I'm uncomfortable" arguments in support of her claim that "[t]he best outcome, for the court and the country, would be for a unanimous court — preferably an 8-0 court with Justice Clarence Thomas recusing himself — to clear the way for Trump to run."
But again, why exactly is that the right outcome? Apparently, fear of "chaos." Even though the lower court in Colorado had gathered evidence, taken arguments, and so on, Marcus quotes her favorite dissenter, who wrote that he is "disturbed about the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis." She then adds: "Chaos indeed, which is why the high court needs to step in."
Chaos must be avoided. Got it. OK, so how about this: The US Supreme Court says that we ought to have a non-chaotic system with standards, but the record compiled in the Colorado district court more than meets any standards that might be applicable, and therefore Donald Trump is ineligible to be on the ballot in any state? That is a lot of things, but it is not a chaotic outcome. Why is it that "we need some clear outcome" somehow immediately rules out the clearest outcome but allows the outcome that dodges the question entirely?
To return to Reagan's speech, what is it that people must do to avoid "spend[ing] our sunset years telling our children, and our children’s children, what it once was like in America when men were free"? More to the point, what will we tell our children and children's children when they ask why it all fell apart? The editors of The Post and Marcus will apparently say, "Well, there was a way to keep Trump off the ballot in 2024, but we decided that judges 'should be reluctant' to do that because the legal issues were not as simple as we would have liked. You understand, right?"