The Supreme Court Is Not Up to the Challenge

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Written By Pinang Driod

The United States is in a moment of democratic crisis, and the Supreme Court has no idea what to do.

Today, the Court held in Trump v. Anderson that Colorado cannot disqualify Donald Trump from the state’s primary ballot as an insurrectionist, a decision that functionally dooms the existing efforts to bar Trump from the presidency under Section 3 of the Fourteenth Amendment. On its face, the ruling is straightforward. All nine justices agreed that states do not have the power to disqualify candidates for federal office. Looked at more closely, though, that seeming unanimity papers over a roiling disagreement among the justices not only about how best to interpret the Fourteenth Amendment, but also about the appropriate role for the Supreme Court in this period of political and constitutional tension.

Over the past several months, a variety of voters and advocacy organizations invoked Section 3 in efforts to block states from allowing Trump onto the ballot. Once the Colorado Supreme Court found that the Colorado secretary of state had acted permissibly in finding Trump to be disqualified, it was inevitable that the Supreme Court would have to take up a case of such overwhelming importance. But the justices, both liberal and conservative, seemed deeply uncomfortable with the idea that they might have to reach a substantive decision on whether January 6 constituted an insurrection, or take an action as dramatic as blocking a major-party presidential candidate from the ballot.

One way to read this hesitation was as an institutional nervousness about touching the hot stove of the political debate over Trumpism, especially at a time when the Court’s political legitimacy has taken a nosedive following a string of far-right rulings. The Court has an interest in maintaining its own reputation, however weakened, as a lofty arbiter of high-minded legal disputes. That concern might make some sense in normal times. But with the authoritarianism of a second Trump term within view, it seems a bit like making sure that the living-room rug is properly vacuumed while the house is burning down.

That same nervousness comes through in the Court’s ultimate resolution of the case. The justices chose to avail themselves of an escape hatch, reasoning that the Fourteenth Amendment allows states to disqualify candidates for state office but not for federal office. This neatly allows them to dispose of the Colorado Supreme Court’s ruling by focusing on a seemingly dull, technical issue concerning the mechanics of the Fourteenth Amendment.

The problem with this reasoning is that it is wrong. Despite the justices’ paeans to history, this line of argument is deeply disconnected from what the historical record shows about the Reconstruction-era understanding and implementation of Section 3. Although the Court claims that the amendment wasn’t meant to allow states power over federal elections, for example, the election-law expert Edward B. Foley has described in The Atlantic how Ohio’s state legislature chose in 1868 against electing a Senate candidate who was arguably disqualified for the seat under the Fourteenth Amendment. In this sense, there’s a palpable desperation to the Court’s ruling: The justices were looking for some way, any way, to get themselves out of this bind, even if their reasoning is profoundly unconvincing.

But as you keep reading, the ruling gets even stranger. The opinion is fashioned as a per curiam ruling, a method the Court typically uses when the justices wish to speak with one voice. Yet it’s packaged with two concurrences—one from Justice Amy Coney Barrett, one from the liberal bloc of Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson—that each, in its own way, underlines the Court’s desperation.

Barrett, in her concurrence, stresses the Court’s unanimity. “The Court has settled a politically charged issue in the volatile season of a Presidential election,” she writes. “Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.” Without intending to, this serves to acknowledge the truth that the per curiam ruling attempts to avoid: The Court was seemingly afraid that a ruling against Trump would thrust the justices into a political dispute, but so, too, does this ruling for Trump. This is, after all, a conservative Court ruling to allow a Republican candidate—who himself appointed three justices—to remain on the ballot despite an attempted coup. Barrett, though, would prefer it if nobody talked about this.

But the liberals’ concurrence shatters Barrett’s insistence that, “for present purposes, our differences are far less important than our unanimity.” The tone of their opinion is strikingly angry, citing both Dobbs v. Jackson Women’s Health Organization and Bush v. Gore—two Supreme Court rulings that damaged the Court’s legitimacy by giving the justices the appearance of engaging in unprincipled politicking. And they warn that “the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”

This sweeping rhetoric is somewhat odd given how small the liberals’ disagreements with the conservative majority are in the decision itself. Kagan, Sotomayor, and Jackson agree that states have no power to disqualify presidential candidates. Their disagreement, rather, is with the majority’s choice to go a step further and find that candidates for any federal office can be disqualified only by an act of Congress that meets a certain set of standards—which, presumably, the Court will now be responsible for evaluating. This is a meaningful distinction. But for the liberals, it is also a relatively nitpicky basis on which to fashion themselves as defenders of Section 3’s “important, though rarely needed, role in our democracy.” After all, if Section 3’s role is so important, why couldn’t these three justices address the issue of whether Trump is an insurrectionist head-on?

One possible reading is that the liberals don’t have the appetite for tackling the constitutional problem of Trump, either. Acknowledging that the Fourteenth Amendment was meant to serve as a protection for democracy against would-be authoritarians—and that Trump himself represents that threat—is a step too far for them as well. They want to signal that January 6 was democratically out of bounds, but they don’t want to have to state it explicitly. Yet this is exactly what the Fourteenth Amendment arguably requires them to do.

Barrett’s insistence on the Court’s unanimity is right in one important sense. Across the political spectrum, the justices’ true interests lie in preserving the power and legitimacy of the Court itself. The same dynamic is at work in the justices’ decision to hear Trump’s claim to presidential immunity, which will have the effect of potentially delaying a verdict in the January 6 criminal case until after the election but reasserts the Court’s role as the ultimate arbiter of weighty legal issues. In Anderson, the conservatives are more aggressive about claiming a role for the Court in future disputes over the scope of Section 3, but the liberals, too, remain unduly focused on preserving the Court as an institution.

The Court wants to be seen as above politics, but it isn’t. Politics has arrived at its door. The Anderson decision achieves, in its own way, a remarkable feat: It manages to expand the Court’s own power while also expressing a deep uncertainty about what, in a moment of crisis, that power is actually for.

Quinta Jurecic is a contributing writer at The Atlantic, a fellow in governance studies at the Brookings Institution, and a senior editor at Lawfare.

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