The Supreme Court Once Again Reveals the Fraud of Originalism

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Written By Pinang Driod

It was always unlikely that the Supreme Court, with its right-wing majority, would uphold Colorado’s ruling throwing Donald Trump off the ballot merely because he tried to execute a coup after losing the 2020 election. As the unanimous per curiam ruling issued Monday overturning Colorado’s decision suggests, a Court made up of nine liberal justices may not have done so either.

That’s because sustaining the Fourteenth Amendment’s bar on insurrectionists holding office as written would put the justices in the difficult political position of looking like they were deciding an election. Such a thing could undermine popular support for the Court as an institution. It might prompt Congress to act to constrain the Court’s power. It could have led to a massive and potentially violent backlash from Trump supporters.

The unanimous part of the decision found that states do not have the authority to disqualify candidates for federal office, the least absurd and damaging rationale for avoiding disqualification, one that sidestepped rewriting history or contorting the English language on Trump’s behalf. The justices did not declare that January 6 was not an insurrection or that Trump did not engage in such, as elite pundits have twisted themselves into pretzels to argue in these past months; they did not decide that the president is not an officer “under” or “of” the United States, as acolytes of the conservative legal movement have urged.

Instead, the justices argued that allowing state enforcement would lead to anarchy that could “dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.” Referring to the potential problems that could be caused by individual state enforcement of the prohibition, the justices write that “nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.”

Not that this should have mattered to the Court’s originalists, whose commitment to that doctrine supposedly prevents them from deciding cases on the basis of their personal preferences rather than the law itself. But in this case, as the conservative legal scholars William Baude and Michael Stokes Paulsen wrote last year, originalists’ preferred interpretive prisms—the plain text of the amendment, how it was understood at the time, the intent of its framers—would have led to Trump being disqualified, a result that, apparently, none of the justices liked.

Every one of them decided, as transparently as possible in this case, that the text of the Constitution would have forced them to do something they did not want to do or did not think was a good idea, and so they would not do it. The justices did not want to throw Trump off the ballot, and so they didn’t. Not only that, but in order to head off the unlikely scenario of Congress trying to disqualify Trump after the election, they said that Congress must specifically disqualify individual insurrectionists, despite such a requirement having no basis in the text. Even if you agree with the majority that this was a wise decision politically, it cannot be justified as an “originalist” one; it was invented out of whole cloth—and in doing so, the justices basically nullified the section entirely. As the three Democratic-appointed justices note, “Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that enforcement must operate.”

The thing to understand about this case is that, with the exception of the ruling’s partial unanimity, it is little different from many other recent big cases in which “originalism” supposedly carried the day, whether the topic was abortion rights, guns, voting rights, or something else. The conservative justices have a majority, and they may work their will. But the originalism they purport to adhere to is nothing more than a framework for reaching their preferred result in any particular circumstance. They felt that a plain reading of Section 3 of the Fourteenth Amendment would lead to chaotic or adverse outcomes, so they not only ignored it but also essentially amended the Constitution by fiat.

Justice Amy Coney Barrett—alone among the Republican appointees in refusing to go along with their unilateral rewriting of the Fourteenth Amendment—wrote separately, and seemed to urge the media to avoid stating the obvious, that the justices were doing politics rather than law. “The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” Barrett wrote. “For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”

No.

The message Americans should take home from this case is that when Justice Samuel Alito says, “I do think the Constitution means something and that that meaning does not change,” what he means is that the Constitution changes to mean what he would like it to mean. They should take home the recognition that when Justice Neil Gorsuch says, “Suppose originalism does lead to a result you happen to dislike in this or that case. So what?” he would never allow such a thing to happen if he could avoid it. And they should understand that when Barrett herself says that the Constitution “doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it,” she is not telling the truth, but she would prefer you not point that out.

This case reveals originalism as practiced by the justices for the fraud it actually is: a framework for justifying the results that the jurists handpicked by the conservative legal movement wish to reach. Americans should keep that in mind the next time the justices invoke originalism to impose their austere, selective vision of liberty on a public they insist must remain gratefully silent.

Adam Serwer is a staff writer at The Atlantic.

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