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THE SUPREME COURT ONCE AGAIN REVEALS THE FRAUD OF ORIGINALISM  
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Adam Serwer
March 4, 2024
The Atlantic
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_ The justices did not want to throw Trump off the ballot, and so
they didn’t. _

, Illustration by The Atlantic, Eric Lee / Bloomberg via Getty Images
/ Getty.

 

It was always unlikely that the Supreme Court, with its right-wing
majority, would uphold Colorado’s ruling
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throwing Donald Trump off the ballot merely because he tried to
execute a coup
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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
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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
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Quinta Jurecic: The Supreme Court is eager to rid itself of this
difficult Trump question
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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
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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
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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
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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
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guns
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voting rights
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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
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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.

Quinta Jurecic: January 6 is exactly what the Fourteenth Amendment was
talking about
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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
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“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
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“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
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“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 [[link removed]] is a
staff writer at _The Atlantic_.

* The Supreme Court and the 14th Amendment; Colorado Ruling;
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