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A HISTORIC ABDICATION  
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Sean Wilentz

New York Review
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_ If the Supreme Court decides not to rule on whether Trump should be
disqualified, it could set off precisely the crisis it hopes to avoid.
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Donald Trump leaving the stage of a watch party for the Nevada
Republican caucus on the day the Supreme Court heard oral arguments
over whether he should be disqualified from the presidency, Las Vegas,
February 8, 2024, Ian Maule/Bloomberg

 

The Supreme Court justices’ responses last Thursday to the oral
arguments over Donald Trump’s disqualification under Section 3 of
the Fourteenth Amendment were worse than an embarrassment—they were
a disgrace. With the partial exception of Justice Sonia Sotomayor, the
members of the Court appeared woefully ignorant of the historical and
constitutional issues before them. They took up in detail the
ramifications of an eccentric 1869 circuit court ruling by Chief
Justice Salmon P. Chase, _In re Griffin_, that Section 3 could not be
enforced without congressional approval, overlooking, except briefly
and in passing, that in that case Chase flatly contradicted what he
had ruled in another trial a year earlier. They fretted over whether
the section’s disqualifications applied to the presidency and
vice-presidency as offices “under the United States,” ignoring the
explicit evidence from the Senate debates over the amendment in 1866,
expressed most directly by Senator Lot Morrill of Maine, that they
plainly did.

Over the course of more than two hours of presentations and
disputations, gradually it became evident that the justices seem to
have no intention of ruling on the meaning of Section 3 and whether it
disqualifies Trump. Instead they appear to be casting about for a
rationale not to do so. One possibility, which would appeal to the
justices across the ideological spectrum, would be to argue that
disqualifying Trump would be seen as an act of usurpation, the worst
sort of judicial activism, damaging if not ruining the Court’s
standing as an independent branch of government. The trouble is
that, as I have argued in these pages
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both the amendment, interpreted on originalist grounds, and the facts
of the case could not be clearer in demanding Trump’s
disqualification. The justices cannot avoid reaching that conclusion
without appealing to some fictive, extraconstitutional principle. In
an effort to preserve the Court’s legitimacy, they seem ready to
render it illegitimate. Worse still, they may be hastening the
constitutional crisis they think they are heading off.

Trump’s able attorney, Jonathan Mitchell, relied heavily on
Chase’s ruling but shrewdly backed off from other strong claims made
by Trump’s defenders and even by Trump’s own briefs. At one point,
for example, he corrected Justice Ketanji Brown Jackson by pointing
out that there was indeed evidence that the framers of the amendment
had the presidency in mind. Even as he stuck to Chase’s reasoning,
he took pains to remind the Court that it did contradict Chase’s
ruling from the previous year. But in these efforts to establish his
own integrity, Mitchell also underscored how unfamiliar nearly all of
the justices seem to be with the basic questions raised by the case.

Had they mastered the relevant history, the justices would have
understood that these seemingly evenhanded concessions exposed the
groundlessness of Trump’s claims. They would have recognized, above
all, that what turned out to be the basis of Mitchell’s
argument—Chase’s eccentric, one-off judgement—is not only
extraconstitutional but essentially worthless, as the leading experts
in the field have concluded
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because of Chase’s earlier opinion. Instead, for the most part they
persisted in treating _In re Griffin_ as a significant precedent,
even though, since Chase made the decision from a circuit court, they
have no obligation to do so. Justice Brett Kavanaugh clung
to _Griffin_ especially closely as “highly probative” of Section
3’s “original public meaning.” Justice Sotomayor, for her part,
pushed back strongly against Mitchell’s reliance on
the _Griffin_ case: “a non-precedential decision that relies on
policy, doesn’t look at the language, doesn’t look at the history,
doesn’t analyze anything than the disruption that such a suit would
bring, you want us to credit as precedential?”

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The Court seems likeliest to find an escape hatch in a point made by
several of the justices, including Amy Coney Barrett and Samuel Alito.
Justice Elena Kagan stated it most starkly to Jason Murray, the
attorney representing the Colorado voters: “I think that the
question that you have to confront is why a single state should decide
who gets to be president.” Put that way, the question stands to
reason; allowing a single state to dictate a presidential election
sounds absurd. But the question is both irrelevant and evasive.

Under Article II of the Constitution, the states have the power to
decide how electors for the presidency are to be chosen. Candidates
for the presidency must meet any number of state-dictated requirements
before earning a spot on the ballot. These include whether the
candidate is actually qualified to hold the office under the state and
federal constitutions. Individual states clearly, then, have the
authority to bar any unqualified candidate, including, under the terms
of the Fourteenth Amendment, an insurrectionist who previously swore
an oath to support the Constitution. To deny the states that authority
would be an extraordinary imposition of federal power. In the words of
one amicus brief
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by, among others, the Republican Party’s longtime chief legal
counsel, Benjamin Ginsberg, if the Court were to rule “that Colorado
was powerless to make a judicially-reviewable, pre-election decision
concerning Mr. Trump’s disqualification under Section 3,” it
“would turn our federalist election system upside down.”

The phrase “judicially reviewable” is central to the Court’s
evasion. Any state supreme court’s decision to disqualify a
presidential candidate can, of course, be reviewed by the US Supreme
Court. Ever since the John Marshall Court’s landmark ruling
in _Martin _v._ Hunter’s Lessee_ in 1816, the Court has assumed
that its authority under the Constitution extends to adjudicating
state rulings on federal law. Once it agreed to hear Trump’s appeal
on the Colorado ruling, the Court was fully empowered to decide
whether that ruling should stand, above and beyond affirming the
state’s authority over elections—that is, to decide the meaning of
Section 3 of the Fourteenth Amendment.

Murray made the point explicitly in reply to Justice Kagan’s
skepticism about whether a single state should decide the presidency:
“No, your honor, because ultimately it’s this Court that’s going
to decide [the] question of federal constitutional eligibility and
settle the issue for the nation.” It appears, however, that this is
precisely what the justices have decided not to do. The Court may wish
not to be thrust into the middle of a presidential election for the
second time in a quarter-century, after the debacle
of _Bush _v._ Gore_, but the prospect is staring the justices in
the face. To decline to meet that responsibility, no matter the
fallout, would be a historic abdication.

It would also be an invitation to constitutional chaos. To be sure,
public discord would certainly ensue if the Court were to rule before
the election that Trump, as an insurrectionist, is disqualified for a
second term. But that unrest would in all likelihood be mild compared
to what would follow if Trump were disqualified after being elected.
The amicus brief spells out several possible scenarios. Were Trump to
win the election, it is almost certain that members of Congress would
try to have him declared unfit to serve under the Fourteenth
Amendment. Since bipartisan majorities in the House and Senate voted
in 2021 to, respectively, impeach and remove Trump over the
insurrection, it is possible that such an effort might succeed. But
even if it failed, the effort would invite serious political
instability and turmoil between Election Day and Inauguration Day. By
failing to rule now, the Court could lay the groundwork for future
catastrophe.

SEAN WILENTZ is the George Henry Davis 1886 Professor of American
History at Princeton. His books include _No Property in Man: Slavery
and Antislavery at the Nation’s Founding_. (February 2024)

_THE NEW YORK REVIEW OF BOOKS has established itself, in Esquire’s
words, as “the premier literary-intellectual magazine in the English
language.” The New York Review began during the New York
publishing strike of 1963, when its founding editors, Robert Silvers
and Barbara Epstein, and their friends, decided to create a new kind
of magazine—one in which the most interesting and qualified minds of
our time would discuss current books and issues in depth. Just as
importantly, it was determined that the Review should be an
independent publication; it began life as an independent editorial
voice and it remains independent today. Subscribe to New York Review
of Books. [[link removed]]_

* Donald Trump
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* Supreme Court
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* Fourteenth Amendment
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* elections
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