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That sounds, to me, responsibly practical. But these same justices have a track record of declaring their opposition to logic like this.
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“Suppose originalism does lead to a result you happen to dislike in this or that case. So what?” Justice Neil M. Gorsuch wrote in his book on originalism. And more: “The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences.” Oh really?
Justice Clarence Thomas purports to be similarly self-abnegating. “There are really only two ways to interpret the Constitution: try to discern as best we can what the framers intended or make it up,” he said in a 2008 lecture. “No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores.”
You might think that self-proclaimed originalists would have spent a bit more time grappling with the constitutional text. After all, an influential law review article by two leading originalist scholars argued that Section 3 required Trump’s disqualification. It received not a mention.
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Another chance to pursue an originalist line of thought: Scholars, and the lower courts, disagreed about whether the president is an “officer” and the presidency an “office” under the Constitution. The court didn’t deign to examine this question — what Justice Elena Kagan, at oral argument, called “the officer stuff” — in their decision.
Indeed, to the extent it grounded its decision in constitutional text, the court arguably got things precisely backward. Section 3 provides that “no person shall … hold any office” who, having previously taken an oath to support the Constitution, then “engaged in insurrection.” (Emphasis mine.) “Shall” implies that disqualification is automatic, a default position that, like other sections of the 14th Amendment, doesn’t require congressional legislation to be effective.
The majority asserts that “the text of Section 3 reinforces [its] conclusions” that Section 3 requires separate congressional enforcement legislation. It points, implausibly, to Section 3’s final sentence: “But Congress may by a vote of two-thirds of each House, remove such disability.”
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As the concurring (but actually dissenting on this point) liberal justices observed, “In fact, the text cuts the opposite way. … It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.” Trump’s own lawyer, they noted, acknowledged this “tension” at oral argument.
Meanwhile, the court’s paeans to the rights of voters and its worry about state-by-state patchworks don’t track with the Constitution’s provisions assigning state legislatures the authority to determine how to choose presidential electors. Back in the day (1868, when the 14th Amendment was ratified), primary elections didn’t exist, state legislatures chose senators and presidential electors were still legally free to cast votes however they wanted. So protecting popular sovereignty isn’t exactly … originalist.
You know who understands that the originalist justices lost their way here? Actual originalists, who are beside themselves. “The Originalist Disaster in Trump v. Anderson,” Michael Rappaport, director of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law, headlined a blog post.
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“It is understandable that the Supreme Court would have decided the case on this nonoriginalist basis,” Rappaport wrote. “It does not want to wade into the question of whether Trump engaged in an insurrection. The Republic will not fall because the Court engaged in an unprincipled, pragmatic resolution where its self-interest was severely implicated. But let’s not kid ourselves that this was originalism. It was not.”
And let’s not kid ourselves about what’s going on here. Originalism is a method rigged to produce a result — no abortion rights, easy access to guns — that is congenial to conservatives’ ideological preferences. On the occasions when it’s not, they cherry-pick history or, as here, abandon the approach, with nary an acknowledgment. Hypocrisy in the service of a sensible outcome may not be the worst vice, but it shouldn’t go unremarked.
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So much for originalism.
We’ve seen this phenomenon from this conservative, supposedly originalist court before. But Monday’s ruling in Trump v. Anderson underscores the undeniable reality: the court practices an originalism of convenience. When push comes to shove, when a strict originalist approach would yield an undesirable outcome, professed fealty to originalism gives way to practical considerations.
Some might call this results-oriented reasoning hypocritical. In this instance — I agree with the bottom line — I’ll go with a welcome display of intellectual flexibility and common sense. In my view, the court was correct to consider the practical fallout of letting Colorado remove former president Donald Trump from its primary ballot, as all nine justices agreed should not be allowed. Maybe we’re all living constitutionalists now.
Listen to the conservative justices discussing the dangerous consequences of letting individual states decide for themselves whether candidates for president should be allowed on the ballot.
“An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times,” the opinion observes. “The disruption would be all the more acute — and could nullify the votes of millions and change the election result — if Section 3 enforcement were attempted after the Nation has voted. Nothing in the Constitution requires that we endure such chaos — arriving at any time or different times, up to and perhaps beyond the Inauguration.”
That sounds, to me, responsibly practical. But these same justices have a track record of declaring their opposition to logic like this.
“Suppose originalism does lead to a result you happen to dislike in this or that case. So what?” Justice Neil M. Gorsuch wrote in his book on originalism. And more: “The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences.” Oh really?
Justice Clarence Thomas purports to be similarly self-abnegating. “There are really only two ways to interpret the Constitution: try to discern as best we can what the framers intended or make it up,” he said in a 2008 lecture. “No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores.”
You might think that self-proclaimed originalists would have spent a bit more time grappling with the constitutional text. After all, an influential law review article by two leading originalist scholars argued that Section 3 required Trump’s disqualification. It received not a mention.
Another chance to pursue an originalist line of thought: Scholars, and the lower courts, disagreed about whether the president is an “officer” and the presidency an “office” under the Constitution. The court didn’t deign to examine this question — what Justice Elena Kagan, at oral argument, called “the officer stuff” — in their decision.
Indeed, to the extent it grounded its decision in constitutional text, the court arguably got things precisely backward. Section 3 provides that “no person shall … hold any office” who, having previously taken an oath to support the Constitution, then “engaged in insurrection.” (Emphasis mine.) “Shall” implies that disqualification is automatic, a default position that, like other sections of the 14th Amendment, doesn’t require congressional legislation to be effective.
The majority asserts that “the text of Section 3 reinforces [its] conclusions” that Section 3 requires separate congressional enforcement legislation. It points, implausibly, to Section 3’s final sentence: “But Congress may by a vote of two-thirds of each House, remove such disability.”
As the concurring (but actually dissenting on this point) liberal justices observed, “In fact, the text cuts the opposite way. … It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.” Trump’s own lawyer, they noted, acknowledged this “tension” at oral argument.
Meanwhile, the court’s paeans to the rights of voters and its worry about state-by-state patchworks don’t track with the Constitution’s provisions assigning state legislatures the authority to determine how to choose presidential electors. Back in the day (1868, when the 14th Amendment was ratified), primary elections didn’t exist, state legislatures chose senators and presidential electors were still legally free to cast votes however they wanted. So protecting popular sovereignty isn’t exactly … originalist.
You know who understands that the originalist justices lost their way here? Actual originalists, who are beside themselves. “The Originalist Disaster in Trump v. Anderson,” Michael Rappaport, director of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law, headlined a blog post.
“It is understandable that the Supreme Court would have decided the case on this nonoriginalist basis,” Rappaport wrote. “It does not want to wade into the question of whether Trump engaged in an insurrection. The Republic will not fall because the Court engaged in an unprincipled, pragmatic resolution where its self-interest was severely implicated. But let’s not kid ourselves that this was originalism. It was not.”
And let’s not kid ourselves about what’s going on here. Originalism is a method rigged to produce a result — no abortion rights, easy access to guns — that is congenial to conservatives’ ideological preferences. On the occasions when it’s not, they cherry-pick history or, as here, abandon the approach, with nary an acknowledgment. Hypocrisy in the service of a sensible outcome may not be the worst vice, but it shouldn’t go unremarked.
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