Our Supreme Court is now and has always been a political and ideological institution. But the Court fares the worst when it engages in naked partisan politics strongly favoring one side. Congress should take this political question out of the hands of the justices and remove Trump’s disqualification from state ballots pursuant to the last sentence of Section 3 of the Fourteenth Amendment.
Supreme Court Politicking: A Discouraging History
In the mid-1850s, our country was torn in half along bitter partisan and geographic lines. While the South saw Slavery as essential to its economy and way of life, the North was slowly trying to rid the nation of this evil and pernicious practice. After a series of attempted compromises and deals, Congress enacted a law prohibiting slavery in the new territories, but that only inflamed passions and deepened these divisions.
On the Supreme Court’s docket was a case the whole country was watching with anticipation. At issue in Dred Scott v. Sandford, was whether Black people were citizens of the United States able to bring suit in federal court under the diversity jurisdiction created by Article III of the US Constitution, and whether Congress’s law prohibiting slavery in the territories was constitutional. In a landmark decision often considered to be the worst ever issued by the Court, the justices held 7-2 that Black people were never and could never be citizens of the United States and that Congress could not end slavery in the territories. The impact of the decision cannot be overstated.
According to one account published by the Missouri Secretary of State’s office: “The United States Supreme Court was under increasing pressure to offer a judicial resolution to the slavery issue. … [Chief Justice Roger B.] Taney intended the Court’s decision to end the slavery controversy for all time. Instead, the intense and immediate public reaction accelerated a chain of events that made fighting a civil war unavoidable.”
Fast forward a couple of decades: The presidential election of 1876 was in tatters. The vice president had to choose between different panels of electors in several states with the results of the vote on the line. The Democrats, however, did not believe he had the authority to do that, and eventually, a commission was appointed to tally the votes, resulting in a backroom deal that included the participation of five Supreme Court justices. That deal, a tad oversimplified, was that Republican candidate Rutherford B. Hayes would be announced the winner, but in return, the last remaining Northern troops would leave the South. As a result, Reconstruction, with all its promise, was effectively over. The result of that deal was the legalization of white supremacy in the South for generations. The participation of the justices in a deal that caused so much harm is hardly something either the Court or the American people should be proud of.
In 2000, the presidential election was so close that whoever won Florida’s electoral votes between Al Gore and George W. Bush would become the next president. The Florida Supreme Court had ruled that a recount was necessary due to electoral irregularities, but the Supreme Court stepped in and stopped the recount, effectively handing the election to George Bush and making Bush v. Gore a symbol of the Court’s supreme overreaching and partisan politicking.
And Here We Go Again
The Supreme Court has decided to review the Colorado Supreme Court decision disqualifying Donald Trump under Section 3 of the 14th Amendment because the former president engaged in an insurrection. Legal academics, political science professors, media pundits, and state officials disagree over whether Trump should be disqualified and what role, if any, courts should play in this highly contested and crucially important process.
In a recent JURIST commentary, I urged Democrats in Congress to propose a bill to remove any possible Section 3 disqualification, thereby ensuring the people would be able to vote for who they want to be president. My reasons are pragmatic and center on ending Donald Trump’s political career and minimizing the worst elements of Trumpism. But my overarching rationale is that looking to the Supreme Court to manage this controversy in a way that moves the country forward in a positive direction is foolish and ignores relevant history. The justices are not coming to save us and, if anything, they are likely to make the situation much worse.
Under Chief Justice John Roberts, the court has consistently ruled in important election cases in ways that help the Republican Party. Senator Sheldon Whitehouse has been ranting about this for years, and he is correct. It is also important to remember that three of the six conservative justices (Roberts, Brett Kavanaugh, and Amy Coney Barrett), worked on Bush v. Gore, which resulted in a nakedly partisan political result favoring the Republican Party.
Of course, in that case, it was obvious what result was in the best interest of the GOP. Donald Trump muddies those waters. Nevertheless, the Court will rule based on what it deems to be in the best interest of the Republican Party and not because of text, history, or precedent; though of course, the justices will explain their decision in legal terms — not political ones. It is naïve to expect otherwise.
Whichever way they rule, a substantial part of the country will not accept the result as peacefully and professionally as Al Gore accepted his fate in Bush v. Gore. A decision disqualifying Trump may well lead to profound violence and civil unrest. There is no doubt that Trump would use such a decision to further divide the country and inflame his supporters. Whether or not Trump could ever gain power after such a decision, the country would move to the right, and by a considerable margin, and the Court may feel even more emboldened (if that is possible) to lurch the country back in time and limit ever more civil rights.
A decision in favor of Trump will cement the Roberts court’s reputation as a rubber stamper of GOP policies and priorities. The institution may not be able to absorb the resulting lack of confidence and disdain among the left and center-left. And a decision not to decide would be the worst result of all. Numerous election law experts have said that an answer must be delivered soon, and it must be final; otherwise, the country will face a major crisis when the 2024 presidential votes are eventually counted.
There is no good road for the Supreme Court to take. But there is an alternative way forward.
Section 3 gives Congress the authority to remove any disqualification, past or future, and such a determination would not be reviewable in any court. Congress should act quickly and remove any possibility of disqualification based on Trump’s involvement in the 2020 election. The Democrats could boast they are not afraid of Trump and will beat him at the polls, and the Republicans in Congress would simply have to go along. Such a move would help the democrats with all but the most stubborn among Trump’s base. And if Trump is on the ballot, it will not be hard to encourage Democrat voters to show up in droves. This is a strong strategy politically.
Whether Donald Trump engaged in an insurrection of the kind that should disqualify him from holding further office is not a factual or empirical question like those that occasionally arise with age, residence, and citizenship requirements where there are clear criteria. It is a complex question rooted in issues of law, fact, and the varying interpretations thereof.
The Supreme Court has more than enough room to decide the case any way the justices prefer. But they should not be deciding this acutely political question at all. In this case, Congress should take the reins. And soon. This would effectively means removing the disqualification because the political makeup of our national legislature renders it impossible for Congress to reach the opposite result. Then, hopefully, the democrats will be energized and send this would-be dictator back to his gold-plated bathrooms and daily golf games (or even, perhaps, prison, pending the outcomes of his various ongoing criminal proceedings) removing him from serious political consideration for the rest of his life.
Eric Segall is a professor at the Georgia State University College of Law and the author of Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges.
