When the Supreme Court overruled Roe v. Wade in 2022’s Dobbs decision, the court’s conservative majority outdid themselves with displays of moral superiority and self-righteousness. Roe was “egregiously wrong,” crowed Justice Samuel Alito. “No such right is implicitly protected by any constitutional provision,” he declared. “The Constitution makes no reference to abortion.”
Justice Clarence Thomas, sidling up in concurrence, menacingly promised to revisit the court’s prior rulings legalizing contraception and same-sex marriage. One could almost hear their chortling as they summarily tossed away 50 years of jurisprudence to achieve their long-standing goal of reducing all women, girls, and anyone who might ever become pregnant to second-class citizens.
We were assured, even in the language of the opinion itself, that this was not a political decision. No, it was simply a matter of “originalist” textual interpretation, duly deferring to those hallowed framers and authors these six justices purportedly hold in such high esteem: They were simply reading the words of the document itself!
But these devotees of “originalism” and “strict construction” now have a serious problem. They are now tasked to decide the effect and application of Section 3 of the 14th Amendment, which contains no ambiguity whatsoever. In fact, it explicitly directs them to make a decision that this same conservative Supreme Court majority emphatically does not want to make: allowing the state of Colorado (and, by extension, any other state) to preclude Donald Trump from running again for office in light of his actions surrounding the Jan. 6 assault on the U.S. Capitol.
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That decision implicates more than simply barring an adjudged fraudster and (now) insurrectionist from his place on the ballot. Assuming they opt to weasel out of their sworn duty—the most likely outcome—they will have irrevocably and permanently outed themselves as nothing but a crass political entity, confirming their fealty to Fox News and the slavish, Trumpified entity that still calls itself the Republican Party. The handy fig leaf of “originalism” that has served these reactionary justices for so long will have permanently dropped, leaving Americans staring agape at their naked political bias.
Thomas is the most outspoken of the so-called “originalists” on this court, but the reason that Thomas almost certainly won’t recuse himself from a case involving events in which his own insurrectionist-minded wife, Ginni Thomas, played a supporting role has nothing to do with some high-minded judicial philosophy. He likely believes in—or at the very least gives some credence to—the cause espoused by those who attacked the Capitol. He may even believe the election was “stolen,” having shared his most intimate moments with his equally reactionary wife for 36 years.
Viewed through right-wing goggles, Jan. 6 was certainly no “insurrection” to Thomas. Rather, just like his wife, he doubtlessly sees it as a case of liberal exaggeration, perhaps even a broadly engineered conspiracy to deny Donald Trump what he rightfully deserved. He certainly does not (and will not) blame Trump for egging on the mob that day, whatever the text of the 14th Amendment may say. That’s the mindset of someone who has spent his entire professional life ensconced in a right-wing bubble. Thomas is predisposed to dismiss the reality of what actually occurred that day with the same cool alacrity as he dismisses the overwhelming evidence of his own corruption. (The same contemptuous disregard infects Alito as well, although he wears his fig leaf of “originalism” in an even more haughty and imperious manner, impressed as he is by his own purportedly shining intellect.)
So they (and their like-minded fellow conservative justices, or some combination of the six that allows one in the pack to stray) have to try and find some workaround here. It’s not even about Trump himself anymore, but the overweening right-wing political machinery that put them where they are today that must be defended. As the man responsible for installing three of their ideological colleagues, Trump still embodies that machinery. To allow Colorado (and any other state) to toss Trump off the ballot would constitute a repudiation of the party that brought them to the pinnacle of power they now enjoy. They’re not going to be inclined to do that.
But there is no obvious “workaround” here, if the court is actually interested in achieving a just result rather than punting through one of several available legal “offramps.” Assuming the court approaches the case with a view toward its merits (which it deserves), the 14th Amendment is absolutely clear, and no amount of micro-analysis or historical cherry-picking can change that. So they will have to invent an excuse to save Trump from disqualification. But if they do that, the so-called “judicial philosophy” they pretend to revere collapses like a house of cards, and any “legitimacy” they may still cling to collapses along with it.
As conservative David French observes in a column for The New York Times:
Since the rise of Trump, he and his movement have transgressed constitutional, legal and moral boundaries at will and then, when Americans attempt to impose consequences for those transgressions, Trump’s defenders and critics alike caution that the consequences will be “dangerous” or “destabilizing.”
The conservative majority that controls the Supreme Court has no problem with “dangerous” and “destabilizing” as long as it’s the right people who are endangered or destabilized. Hence the Dobbs decision and its macabre fallout of human suffering ever since. But this will likely be at least one hook they try to hang their reasoning on if and when they overrule Colorado’s decision to remove Trump from the ballot in light of his actions precipitating Jan. 6.
The problem, though, as French emphasizes, is that the 14th Amendment was conceived to address the same type of danger and destabilization that Trump now represents. It was authored—as the text clearly states—with the crystal-clear purpose of keeping former insurrectionists out of our government. Because those same people—having fought a war of secession from the Union—were deemed dangerous to the continued existence of the Union.
From the Constitution, Amendment 14, Section 3:
No person shall … hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
As French observes, the same danger now looms in the form of Donald Trump and his army of virulent supporters. Case in point: The immediate reaction to Colorado’s (and Maine’s) decision to preclude Trump from accessing the ballot in those states was a cascade of violent threats from Trump’s most rabid supporters. This has been the pattern exhibited time and time again whenever Trump’s supporters perceive Trump or his policies to be under attack. As French writes:
This is where we are, and have now been for years: The Trump movement commits threats, violence and lies. And then it tries to escape accountability for those acts through more threats, more violence and more lies. At the heart of the “but the consequences” argument against disqualification is a confession that if we hold Trump accountable for his fomenting violence on Jan. 6, he might foment additional violence now.
You can bet he and his supporters will foment violence: as French notes, it’s what seditionists do. But that’s exactly why the 14th Amendment was drafted in the first place: to keep such people from poisoning the fabric of our government. As French observes, “Republics are not maintained by cowardice.”
French points out the obvious: The text of Section 3 is clear on its face. But he goes further, making a critical point about the nature of this particular amendment:
It’s crucial to understand that many of the Constitution’s provisions are intentionally antidemocratic. The Bill of Rights, for example, is a check on majoritarian tyranny.
[…]
So when a person criticizes Section 3 as undemocratic or undermining democracy, your answer should be simple: Yes, it is undemocratic, exactly as it was intended to be. The amendments’ authors were worried that voters would send former Confederates right back into public office. If they had believed that the American electorate was wise enough not to vote for insurrectionists, they never would have drafted Section 3.
Nor, as French points out, does the text require a “criminal conviction” of insurrection to apply its prohibition. The former Confederates—barred by the 14th Amendment from holding office—stayed that way until the Amnesty Act of 1872 restored their eligibility. They weren’t “convicted” of anything. If Congress and the states felt that Section 3 of the amendment were no longer necessary, they would have instituted and passed another amendment abrogating it. The fact alone that such an attempt has never occurred speaks to its continued necessity and relevance.
But, as we all know, this ultra-right-wing court simply somehow, some way, must allow Trump to remain on the ballot. So what may happen is they’ll squint their eyes very, very tightly, click their heels three times, and declare that Jan. 6 wasn’t an “insurrection” after all.
Thomas would embrace that strategy because if he acknowledged the real nature of what happened on Jan. 6, he would also have to acknowledge his own wife abetted and aided the same cause, and he couldn’t very well do that without recusing himself. He’ll have a bevy of justifications already implanted in his mind: Fox News told him it was “antifa.” Or it was a “tourist“ visit that was “mostly peaceful.” But more basically, neither Thomas, Alito, nor any of these conservative justices can afford to acknowledge the truth when that truth cuts to the very core of their existence. They won’t betray their party or its standard-bearer if they can find a plausible excuse not to.
And if that’s the route they choose, the hollowness of that decision will reverberate forever in infamy because, as French observes, it’s dead wrong and they know it. As French explains, the Colorado Supreme Court, with painstaking exactitude, “reached a common-sense conclusion that any definition of ‘insurrection’ for purposes of Section 3 would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.” Jan. 6 was an attempt to do just that.
As French writes, what occurred that day was no ordinary “riot.” It had a clear and well-planned purpose: to effectively disenfranchise over 80 million peoples’ votes for the purpose of “chang[ing] the government of the United States.” It was an attempt to stop the certification of a wholly lawful election with the solitary goal of keeping Trump in office. As French notes, Trump’s “foot soldiers didn’t wear gray or deploy cannons, but they did storm the United States Capitol, something the Confederate Army could never accomplish.”
There is simply no plausible way to distinguish Jan. 6 as anything but an insurrection, one deliberately instigated by Trump. Therefore, there is no other choice under the court’s “originalist” pretenses than to disqualify him under the 14th Amendment. (French also observes that suggesting the amendment could not apply to a [former] president for his behavior in office is “fantastical” given the absolute clarity of the text.)
No right-wing think tank ever dreamed that a conservative Supreme Court would find itself compelled to rule on the applicability of a statute as clear as Amendment 14, Section 3, in order to keep a Republican insurrectionist off the ballot. That’s because “originalism” was never conceived as a legitimate jurisprudence. Rather, it was a sophistry, invented out of whole cloth to preserve the privileges and ideological goals of a minority loathe to see its own power diluted.
As David Cole observed, writing for The New York Review of Books, the entire concept of “originalism” grew out of the reaction to Roe v. Wade and the fervent desire of conservatives to prevent any cases like Roe from happening again. It was “the culmination of a half-century-long campaign by activists, politicians, scholars, lawyers, and judges that began almost as soon as Roe was decided in 1973.”
The irony here is that when the right-wing Supreme Court reached its coveted goal by overruling Roe v. Wade, it did so in part by scrutinizing the very same 14th Amendment that it now finds being waved in front of its face by the state of Colorado. As Cole notes, the court’s ruling in Dobbs “rested squarely on originalism.” But now, faced with the same 14th Amendment, they have to find a way to invalidate or eviscerate its plain language and intent to get the result they want. So they’re in a box, and it’s a box they created for themselves.
They could escape the box. They could do exactly what the 14th Amendment tells them to do, and rule Trump ineligible to run again for public office. That’s what a court genuinely following an “originalist” jurisprudence would do.
But that isn’t likely to happen. For this Supreme Court, it would mean telling most of the Republican electorate that they’ve been living a lie for the past two years, despite what Fox News and right-wing media have told them about Jan. 6. It would also mean repudiating the Republican Party that put these conservative justices where they are today. This court isn’t going to do that, because it too is living a lie, a lie called “originalism” that has suddenly become very inconvenient for them to follow.
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