The Justices Must Choose: Trump or the Constitution

This week, the U.S. Supreme Court will hear former President Donald Trump’s appeal from the Colorado Supreme Court decision disqualifying him from the state primary ballot. When the justices decided to take up Trump’s disqualification, the matter immediately became the biggest case of the term. Arguably, it’s the biggest case in Supreme Court history since Dred Scott. How the justices rule could very well destroy the Court’s reputation and place us on the path toward further civil dysfunction, even disunion. 

To reach the right answer in a case of this magnitude, the justices need only perform a simple task, one they have admonished lawyers to perform for more than a generation: stick to the text. The question raised on appeal, as prescribed by Section 3 of the 14th Amendment, is: Did President Trump “engage in insurrection or rebellion” or “provide aid or comfort” to “enemies” of the Constitution? 

The answer is yes. 

Despite enduring three years of gaslighting from Trump loyalists, none of us will ever forget what occurred on Jan. 6, 2021. Trump called his supporters to Washington, incited them to “fight like hell,” and directed them to the Capitol to “take back our country.” 

The insurrectionists took him at his word. 

As Congress was voting to certify the 2020 presidential election, Trump supporters stormed the Capitol, attacked and injured members of the Capitol Guard and forced our representatives into hiding. All the while, Trump watched. He resisted calls to bring in the National Guard to maintain peace while disparaging then-Vice President Mike Pence, a target of the rioters, on Twitter. When the violence was finally halted by police, Trump ended the day telling the rioters: “We love you.” He has since referred to the insurrectionists as “hostages” — comforting words indeed for those having been indicted or face serious prison sentences for their violent uprising against the government, i.e. “insurrection.”

Given the obviousness of Trump’s support of the insurrectionists and the Colorado court’s disqualification on that basis, a political maelstrom has ensued. Trump and his base are lashing out at the courts, liberal elites and the so-called “deep state.” But we should ignore those histrionics for the political blather they are. 

Let’s instead focus on the legal arguments that will be at play on Thursday. Conservative commentators are pleading for the justices to consider bizarre justifications for keeping Trump on the ballot. The most prominent of those is that Section 3 does not apply to Trump because the president isn’t an “officer of the Constitution.” 

There really is no way for the Court to protect Trump and defend the U.S. Constitution — it must choose and bear the consequences.

As law professor Akhil Reed Amar stated rather bluntly, “This is a genuinely stupid argument.” Reading the clause this way would mean that the Reconstruction Congress intended to bar insurrectionists from serving as presidential electors, congressional members or senators, but not president of the United States. Clearly, that strains credulity. So, the justices would need substantial historical evidence that the clause exempts the president. No such evidence exists.   

Less prominent is the argument that we do not have a “tradition” of extending Section 3 to persons other than former confederates. That too is genuinely stupid. The Reconstruction Congress was not so parochial as to only take aim at former confederates. The War of 1812 had reminded Americans that old enemies may rise again. The Congress therefore sought to protect the Constitution and the nation from exactly the kind of domestic threats that culminated in the Civil War. They surely did not guess it would take more than a century before the clause again became relevant, but they left us prepared for such a moment.

It’s disappointing to acknowledge that these straightforward arguments will likely not suffice for the conservative majority. Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are no doubt weighing their loyalty to the conservative cause. Will they still be lavished with yacht vacations and private flights to fancy retreats if they don’t toe the line for the forces that put them in power? Will the Federalist Society still cheer their legacies or cast them down with the likes of John Paul Stevens, Sandra Day O’Conner, Anthony Kennedy and David Souter over this single question? These are the major questions presently concerning the conservative majority. 

Given the consequences of betrayal, most court watchers believe the justices will seek a middle path to dodge infamy. 

For example, the justices could read the 14th Amendment to require a formal conviction before Section 3 disqualifies someone from office. Such a dodge would stumble over the historical fact that none of the individuals formerly disqualified under Section 3 were ever formally charged with “rebellion or insurrection.” 

Others anticipate that the Court could rule that Section 3 cannot be enforced without legislation prescribing the means and methods of incapacitating a would-be officeholder. They’d essentially be saying that the law of the land somehow isn’t enforceable as the law of the land. That cute legal maneuver has the virtue of punting the question to a divided Congress where such legislation is unlikely. It likewise requires rejecting the Colorado Supreme Court’s reasoning whole hog, leaving the Court’s conservative justices as greasy as their decision.

There really is no way for the Court to protect Trump and defend the U.S. Constitution — it must choose and bear the consequences. In that choice, I have a warning: For those who think the public will forgive and forget if the justices shirk their constitutional responsibilities, think again. 

The last time the Court was embroiled in a presidential controversy of this magnitude, it survived only because Al Gore chose not to impugn the Court’s ruling against him. He peacefully conceded the 2000 presidential race “for the sake of our unity as a people and the strength of our democracy,” and his supporters followed suit rather than taking to the streets. 

But those were gentler times — before Senate Minority Leader Mitch McConnell (R-Ky.) stole a Supreme Court seat and gave fodder to calls for “expansion”; before this Court wantonly overruled the constitutional rights to an abortion and to promote diversity in higher education, giving rise to increased awareness of the Court’s misdeeds and before we learned that Clarence Thomas is not as modest as he claims among the ongoing Senate investigations into his corruption. 

There is no grace left to forgive a decision so egregious. Most Americans now believe the Supreme Court is a threat to democracy and the rule of law. Siding with Trump would only confirm those doubts. 

The reality is that Trump’s ability to appear on the ballot is only one of the questions on the line as the Supreme Court considers this case. The justices are determining their futures and that of the Supreme Court. I do not envy them — but neither do I pity them. You cannot serve two masters forever. And now the time has come to decide: the rich or the rest of us — Trump or the Constitution. 

---

Rakim Brooks is a public interest appellate lawyer and the president of Alliance for Justice. As a contributor to Democracy Docket, Brooks writes about issues relating to our state and federal courts as well as reforms to our judicial systems.