[Noah Feldman] Supreme Court buries fantasy of keeping Trump off ballot

The Supreme Court has unanimously concluded that Colorado can’t keep Donald Trump off the ballot. Section 3 of the 14th amendment, which says that a former officeholder who becomes an insurrectionist can’t hold federal office, won’t save us from a potential second Trump presidency. The court correctly rejected what I would call the National Treasure theory of the US Constitution, according to which an obscure, almost discarded provision could have determined the outcome of a presidential election. Now it’s up to we the people to save our democracy.

The court’s opinion was an unsigned per curiam, which means no single justice has authorship. In one of its two parts, the court held that a state -- in this case Colorado -- doesn’t have the authority under Section 3 of the federal Constitution to decide whether a candidate for office is disqualified for insurrection or rebellion. In the other part of the opinion, the court held that, for Section 3 to go into effect, Congress would have to pass a law specifying the procedures that would be required to determine whether a candidate was in fact disqualified.

The three liberal justices concurred in the court’s judgment, meaning that they agreed Colorado can’t disqualify Trump. They did not, however, join the court’s opinion. Instead, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson wrote a joint concurring opinion, signed by all three, protesting that the majority had unnecessarily said that Congress would have to pass a law for Section 3 to go into effect. They would’ve preferred the court to restrict its holding to saying that a state like Colorado couldn’t disqualify a candidate on its own.

Justice Amy Coney Barrett agreed substantively with the liberals. She wrote a separate concurrence that joined only that part of the per curiam that addresses Colorado and noted that she would have gone no further. But Barrett chided the liberals for the tone of their reproach of the majority, writing in her concurrence that, “in my judgment, this is not the time to amplify disagreement with stridency,” and arguing that “the message Americans should take home” is that “for present purposes, our differences are far less important than our unanimity.”

In practice, Barrett is surely correct that unanimity should be the main takeaway here. All nine of the justices thought it would be a terrible idea for states to go around on their own excluding presidential candidates under Section 3.

If the court had followed the view of these four justices and avoided saying that Congress must act for Section 3 to go into effect, that would have left open the possibility of a federal court suit claiming that Trump was disqualified for the presidency under Section 3. That suit would certainly have ended in the court rejecting the argument -- so the practical outcome would have been the same. The difference would have been the ongoing uncertainty, the remote possibility held out by liberals, and maybe the feasibility of a political argument being made by Democrats that Trump was disqualified by Section 3 notwithstanding the failure of the Colorado gambit.

Given these possibilities, it is at least understandable that the majority wanted to take Section 3 off the table. To get there, the court relied, albeit not in a full-throated way, on the only precedent of any importance: Griffin’s Case, an 1869 circuit court decision written by then Chief Justice Salmon P. Chase in his capacity as a circuit justice. At oral argument, Justice Brett Kavanaugh was the one pushing this precedent, and it’s a fair assumption that his view prevailed among the other conservatives excluding Barrett.

The reason the court didn’t trumpet its reliance on precedent is probably that the decision isn’t all that well reasoned, as the conservative originalist scholars who put the whole Section 3 question on the public agenda noted. The most important legal and constitutional takeaway of Trump v. Anderson is that, when it comes to the weight of precedent, strong reasoning actually isn’t and shouldn’t be all that important.

The bottom line is that Griffin’s Case has shaped the thinking of everyone who bothered with Section 3 since 1869. In 1870, Congress did in fact adopt legislation implementing Section 3, which stayed on the books until it mysteriously disappeared during a revision of the US Code in 1948.

Given that background, it would have violated basic principles of constitutional order and precedent to hold otherwise. The entire point of precedent is to create a gradual evolutionary process and a high degree of predictability in the Supreme Court’s interpretation of the Constitution. That’s a big part of why it was so fundamentally wrong for the court to overturn Roe v. Wade, beyond the moral wrongness of the Dobbs decision.

It’s time to bury the fantasy of thwarting Trump by the discovery of a lost constitutional provision. It’s time to save us from a president who tried to break democracy by using the one tool on which democracy ultimately depends, namely the will of the people.

Noah Feldman

Noah Feldman is a Bloomberg Opinion columnist. -- Ed.

(Tribune Content Agency)