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This is The Trump Trials by George T. Conway III, a newsletter that chronicles the former president’s legal troubles. Sign up here.
You can’t always get what you want. What Mick Jagger said about life applies with equal, perhaps even greater, force to litigation. Like life, litigation has its ups and downs. It reflects human fears and frailties—because judges, lawyers, and litigants are human. Law is never perfect, and never will be.
And so it is with the United States Supreme Court’s decision yesterday in Trump v. Anderson, which unanimously reversed the Supreme Court of Colorado’s decision barring Donald Trump from the state’s presidential-primary ballot.
Trump’s brazen effort to end constitutional democracy in America should have been the textbook example of the sort of behavior that would lead to someone being barred from holding public office under the Fourteenth Amendment. But it was not to be, and never was to be.
I talked with a lot of people about the Colorado case over the past three months, and I didn’t come across a single person who appeared willing to wager that the Supreme Court would uphold the Colorado decision; even the most fervent advocates for Trump’s disqualification, the ones who believed (as I was ultimately convinced) that the Colorado decision was unimpeachably correct, did not imagine that the Court was likely to agree. My guess is that none of these people thought they had any votes after the argument three weeks ago.
This private pessimism didn’t arise from legal reasoning. It came from an understanding that it was too much to expect this Court, at this time, in this political context, to apply the Constitution the way the Court normally should: by dispassionately looking at the constitutional text, and the historical context, and letting the chips fall where they may. It may be noble-minded for someone like me, sitting in the cheap seats, to incant my favorite Latin legal maxim, Fiat justitia ruat caelum—“Let justice be done though the heavens may fall.” But I don’t hold a lifetime appointment to decide how justice is to be done. And however much I’d like to think that judges really believe—as Justice Samuel Alito claimed in Dobbs v. Jackson Women’s Health Organization—that they “cannot allow [their] decisions to be affected by any extraneous influences such as concern about the public’s reaction to [their] work,” the fact is that judges are human. Their decisions are affected at times by their perception of what the public reaction may be.
Fewer better examples of that will ever arise than the Court’s decision yesterday. I confess that, going in, I gave the Court a lot more credit than the Court eventually showed itself to be due. I wrote that “the people who think the Court is going to reverse no matter what … may well be right.” I was understating things there, but I was convinced that the justices, in reversing, would come up with a stronger opinion than they ultimately did.
They didn’t, because, frankly, there wasn’t anything stronger. And the Supreme Court’s unsigned per curiam opinion—I can’t blame any of the justices for not wanting to put their name on it—makes that painfully, embarrassingly clear. To be sure, the Court deserves some credit. For instance, and with good reason, it didn’t even mention the Trump lawyers’ principal argument, the one that so many people assumed had some purchase: the ridiculous contention that, somehow, the president isn’t an “officer of the United States,” even though the Constitution refers to the presidency as an “office.”
That’s about as much credit as the Court deserves. What the Court did—and I’m referring to all nine justices here, including the ones who wrote concurrences—was make up a holding utterly unmoored from the text or history of the provision it was interpreting, Section 3 of the Fourteenth Amendment. That bottom-line holding: “States have no power to enforce Section 3 with respect to federal offices, especially the Presidency.” The justices who wrote separate concurrences—the Court’s four women—seemed to agree with at least this statement of the holding, as far as the presidency is concerned.
But here’s the problem. The Fourteenth Amendment does not say that. It could have—but it doesn’t. It says, in Section 5, “Congress shall have power, to enforce, by appropriate legislation, the provisions of this article,” meaning all of the provisions of the Fourteenth Amendment. But just because Congress has the power to enact legislation to enforce each of the Fourteenth Amendment’s various provisions—which include, most notably, the guarantee of “the equal protection of the laws” in Section 1—doesn’t mean that state officials, or federal or state judiciaries, are disempowered to apply the Fourteenth Amendment. To the contrary, because the Constitution is the supreme law of the land, they have a duty to do that. State officials and state courts have an obligation not to “deny to any person within [the state’s] jurisdiction the equal protection of the laws,” regardless of what Congress does or doesn’t do.
So now Section 3 of the Fourteenth Amendment is the only provision of the Fourteenth Amendment that may require some congressional action to be enforced, at least in some circumstances. The justices effectively carved out Section 3, without any textual or clear historical basis for doing so.
The Court didn’t even reach that result in a way that makes any sense. Section 3 can be enforced by the states, the Court held, but not for federal offices. Where does the Fourteenth Amendment say that? Where does it say, or even suggest, that federal officeholders are different from state officeholders as far as disqualification is concerned? It doesn’t. The best the Court does is quote an earlier opinion, as well as Justice Joseph Story’s Commentaries, to point out, “Because federal officers owe their existence and functions to the united voice of the whole, not a portion of the people, powers over their election and qualifications must be specifically delegated to, rather than reserved by the States.”
That’s all well and good, but that statement doesn’t bear anything approaching the weight the Court places on it. Because it’s the federal Constitution, not any invention of the states, that says that insurrectionists who violate their oath to support the Constitution can’t hold any federal or state office. And the federal Constitution is binding on the states—always. Which is why the Court recognized that the states could apply—must apply, presumably, because, again, the Constitution is the supreme law of the land—Section 3 to oath-defying insurrectionists who seek state office. But if Section 3 must be applied by the states when they conduct state elections, how is it that they must not do so when the office is federal?
I guess I should stop with the logic, because there really isn’t a lot of it in the Court’s opinion. What little logic that does appear is in the form of a policy argument. The Court correctly points out that, when it comes to the presidency, if states were allowed to enforce Section 3 in federal races, a “patchwork” could result, particularly as to presidential candidates. You could have different states applying different standards under Section 3 in different proceedings with different procedures and on differing records, and they could reach differing results as to a particular candidate for the presidency. This, the Court felt, was bad.
Practically speaking, that’s a fair point. As the University of Michigan law professor Richard Primus put it, “The basic substance of the [Court’s] decision—uniform federal process for disqualification in a POTUS election—is reasonable as a matter of constitutional design.” But if I may play conservative scold to this supposedly conservative Court, it’s not for the Supreme Court of the United States to design the Constitution; its job is to apply the one that others designed.
The desire for uniform presidential elections is a great argument for revising the Fourteenth Amendment, but it should have been made to the 39th Congress, whose members did the drafting in 1866. They could have said that states were not free to apply Section 3 on their own, in some or all cases, or only with procedures that Congress specifies. But they didn’t say that. Instead they said that Congress could remove any insurrectionist’s “disability” by a two-thirds majority and, in doing that, made clear that insurrectionists could be barred by other entities—like the states—without action by Congress. What the Court did yesterday, as Primus wrote, simply “doesn’t follow from any theory” of constitutional interpretation “that this Court is willing to endorse.” And despite the Court’s decision on Trump, we will still have a dreaded “patchwork”—because the Constitution has always vested states with the task of running even federal elections. For example, the presidential candidates Robert F. Kennedy Jr. and Cornel West will likely be on some state ballots but not others, precisely because, as the Constitution contemplates and allows, states have differing ballot-access rules.
I could go on picking apart the weaknesses and inconsistencies in the Court’s opinion, and legions of law professors will do so for ages to come, but the Court’s lack of convincing reasoning is, frankly, beside the point. The Court’s decision wasn’t about law. It was about fear.
That fear is most apparent in the concurring opinions, which otherwise make little sense. Justice Amy Coney Barrett’s concurrence gave that fear open expression. It’s hard to know what to make of her two-paragraph opinion. In the first sentence, she says she joined Part II-B—the guts, if you will—of the Court’s opinion; then, in the next four sentences, she rejects a good portion of that section. She writes that she agrees only that “states lack the power to enforce Section 3 against Presidential candidates”—not candidates for federal office generally, as the majority held—and that the Court shouldn’t “address whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.” But that’s mostly what Part II-B is all about.
As for the concurrence of Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, it does make an important point: that the Court’s opinion went further than it really had to. It’s normally best for judges to make their rulings as narrow as possible, to avoid deciding cases that haven’t yet come before them. And here, Justice Sotomayor writes, all the Court needed to decide was that the states may not apply Section 3 to presidential candidates; it could have avoided the question of whether federal legislation was required for states to do so. But in making her point that “nothing in Section 3’s text supports the majority’s view of how federal disqualification efforts must operate,” she undercuts her own conclusion that the states are barred from holding that an insurrectionist presidential candidate is disqualified. She points out, correctly, that nothing in the Fourteenth Amendment requires federal legislation, and that the provision by which Congress could remove a disqualification undercuts the argument that legislation is required. But these aren’t just arguments against what the majority did; they are solid arguments in favor of upholding Trump’s disqualification. Sotomayor’s concurrence undermines her own vote.
But again, this case wasn’t about legal reasoning; it was about fear. Fear from all the justices, conservatives and liberals, about the impact on the Court of removing Trump from the ballot. And the second paragraph of Justice Barrett’s opinion bleeds fear onto the page. “This is not the time to amplify disagreement with stridency,” she writes. Was that directed at any of her colleagues? Justice Sotomayor’s opinion is hardly strident at all, as far as Supreme Court separate opinions go, even if it makes little more sense than the majority’s. “The Court has settled a politically charged issue in the volatile season of a Presidential election,” Barrett continues. “Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. 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.”
Each of these sentences is true. But why say this? Why not let the Court’s unanimity of judgment and reasoning speak for itself, including that of Sotomayor’s concurrence? Because Justice Barrett—and, I suspect, all the justices—were terrified by the case and what it actually required them to do: affirm Trump’s disqualification.
That may sound depressing, but I see reason to take heart. To be sure, it’s a shame, because this was one circumstance where it would have been nice for the Supreme Court justices to show the courage that some of their colleagues in the lower courts have shown when faced with Trump—judges like Lewis Kaplan, in the Carroll case; Tanya Chutkan, in the federal January 6 case; Justice Arthur Engoron in Trump’s New York civil fraud case; and Justice Juan Merchan, in the upcoming New York criminal case stemming from Trump allegedly cooking his books to pay off an adult-film star. Ultimately, though, litigation will not save us from Trump, and no one should believe that it will.
But litigation will have done its part—even Trump v. Anderson, with its dearth of reasoning and not-quite-satisfactory result. Because there was one very important thing the Court didn’t do yesterday. It didn’t cast one word of doubt, and expressed not a hint of a disagreement with, the amply supported factual conclusion reached by the Colorado courts: Donald Trump engaged in an insurrection. Just as Trump today stands as an adjudicated sexual abuser, so too he remains an adjudicated insurrectionist. It is up to us, as voters, to make use of those findings come November.
Put another way: You can’t always get what you want, but if you try sometimes, you get what you need.
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