Supreme Betrayal
J. Michael Luttig and Laurence H. Tribe The Atlantic
A requiem for Section 3 of the Fourteenth Amendment
The Supreme Court of the United States did a grave disservice to both the Constitution and the nation in Trump v. Anderson.
In a stunning disfigurement of the Fourteenth Amendment, the Court impressed upon it an ahistorical misinterpretation that defies both its plain text and its original meaning. Despite disagreement within the Court that led to a 5–4 split among the justices over momentous but tangential issues that it had no need to reach in order to resolve the controversy before it, the Court was disappointingly unanimous in permitting oath-breaking insurrectionists, including former President Donald Trump, to return to power. In doing so, all nine justices denied “We the People” the very power that those who wrote and ratified the Fourteenth Amendment presciently secured to us to save the republic from future insurrectionists—reflecting a lesson hard-learned from the devastation wrought by the Civil War.
For a century and a half before the Court’s decision, Section 3 of the Fourteenth Amendment was the Constitution’s safety net for America’s democracy, promising to automatically disqualify from public office all oath-breaking insurrectionists against the Constitution, deeming them too dangerous to entrust with power unless supermajorities of both houses of Congress formally remove their disability. This provision has been mistakenly described by some as “undemocratic” because it limits who may be elected to particular positions of power. But disqualification is not what is antidemocratic; rather, it is the insurrection that is antidemocratic, as the Constitution emphatically tells us.
In any event, all qualifications for office set by the Constitution limit who may be elected to particular positions of power. And no other of these disqualifications requires congressional legislation to become operative, as the Court now insists this one does. To be sure, the other qualifications—age, residence, natural-born citizenship—appear outside the Fourteenth Amendment, whose fifth section specifically makes congressional action to enforce its provisions available. But no such action is needed to enforce the rights secured to individuals by Section 1 of the same amendment, so deeming congressional action necessary to enforce Section 3 creates a constitutional anomaly in this case that the majority could not and did not explain. For that matter, no other provision of the other two Reconstruction amendments requires congressional enforcement either. As the concurring justices explained, the majority “simply [created] a special rule for the insurrection disability in Section 3.”
That the disqualification clause has not previously been invoked to keep traitors against the Constitution from having a second opportunity to fracture the framework of our republic reflects not its declining relevance but its success at deterring the most dangerous assaults on our government until now. Put simply, far from what some irresponsibly dismiss as an “obscure, almost discarded provision” of our legal and political system, this section of our Constitution has long been among its mightiest pillars, one that the Supreme Court itself has now all but destroyed.
What ought to have been, as a matter of the Constitution’s design and purpose, the climax of the struggle for the survival of America’s democracy and the rule of law instead turned out to be its nadir, delivered by a Court unwilling to perform its duty to interpret the Constitution as written. Desperate to assuage the growing sense that it is but a political instrument, the Court instead cemented that image into history. It did so at what could be the most perilous constitutional and political moment in our country’s history, when the nation and the Constitution needed the Court most—to adjudicate not the politics of law, but the law of the politics that is poisoning the lifeblood of America.
The issues before the Court were not difficult ones under the Constitution. As Chief Justice John Marshall once wrote of a considerably more challenging question, that of the Court’s own role in reviewing the constitutionality of government decisions, this was indeed “a question deeply interesting to the United States; but, happily, not of an intricacy proportional to its interest.” As the extraordinary array of amicus briefs filed in Trump v. Anderson made clear, the voluminous historical scholarship exploring the origins of the disqualification clause and its intended operation left no genuine doubt that the Colorado Supreme Court got it exactly right in its decision explaining why the former president was ineligible to “hold any office, civil or military, under the United States,” certainly including the presidency.
Perhaps some of the justices were untroubled by the consequences of disregarding both that scholarship and the plain language of the disqualification clause. Joining fully in the Court’s anonymous per curiam opinion that states cannot enforce the clause against federal (as opposed to state) officeholders and candidates would presumably have caused those justices no personal discomfort—apart, perhaps, from that of being seen as trying to square the ruling with their ostensible fidelity to textualism and their supposed belief in the binding force of original meaning.
For Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—who wrote a separate concurrence that in parts read more like a dissent—we can only surmise that any discomfort they felt was outweighed by the extra-constitutional allure of going along with the other justices on the decision’s bottom line and thus enabling the nation’s electorate to work its will, rather than the Constitution’s. Those three justices took the opportunity to distance themselves from at least part of what the Court’s majority did by criticizing its “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.” Sotomayor, Kagan, and Jackson convincingly dispatched as “inadequately supported as they are gratuitous” the majority’s unnecessary holdings that only Congress can enforce the disqualification clause and that Congress’s implementing legislation must satisfy the majority’s made-up insistence upon “congruence and proportionality.” Those three justices left in tatters much that all the other justices, with the exception of Amy Coney Barrett, wrote about the operation of the disqualification clause against federal officeholders, making plain that the majority’s “musings” simply cannot be reconciled with the Fourteenth Amendment’s language, structure, and history.
For her part, Justice Barrett lectured the country about the “message Americans should take home” from the decision, criticizing the majority for needlessly addressing “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced,” while simultaneously criticizing her three separately concurring colleagues for supposedly amplifying “disagreement with stridency,” despite the absence of a single strident word in their clarion warning.
What, then, accounted for the unanimous outcome in this case? All nine justices were persuaded by the appeal of a fatuous argument featured prominently in the briefs supporting the former president—the argument that no single state should be able to disqualify a candidate for the presidency.
But that argument, despite its prominence in many public discussions of this decision, was always utterly empty of constitutional substance. Anyone who knows anything about the United States Constitution and the way the judicial system operates—and that surely includes all nine Supreme Court justices—has to know that a single state could never have rendered a disqualification ruling that would bind the other 49 states, an admittedly untenable result. Here’s how Jason Murray, a counsel for the challengers, put the constitutional answer to that argument when he was pressed on this very question by Justice Kagan:
Ultimately, it’s this Court that’s going to decide that question of federal constitutional eligibility and settle the issue for the nation. And, certainly, it’s not unusual that questions of national importance come up through different states.
Although no justice mentioned this response, nobody should doubt that a state court’s determination of a federal constitutional question—such as Colorado’s that the former president had “engaged in an insurrection or rebellion” against the U.S. Constitution—is subject to review by the Supreme Court. If the Court upholds the state’s disqualification decision, then it will be binding nationwide, in the manner and to the extent decided by the Court. If the state’s disqualification is held to be invalid, then it will be invalid in that state, as well as nationwide. It’s as simple as that.
Nothing about letting an individual state initiate the disqualification process ever threatened to create what the unanimous Court called a “patchwork” of divergent state resolutions of the controlling federal questions of what constitutes a disqualifying “insurrection” and whether the former president had “engaged” in one. >From the outset, the hand-wringing about how no state should be empowered to rule over its sister states on the national question as to who might run for president was all smoke and mirrors, manifestly predicated on a demonstrably false premise about the way our judicial system works.
So it’s little surprise that, built on that false premise, the opinion that emerged from the Court’s constitutional confusion was a muddled, nameless per curiam decree palpably contrary to the text, history, and purpose of the Fourteenth Amendment.
For no apparent reason other than to create the impression that it was leaving open the possibility that the former president might yet be disqualified pursuant to congressional legislation, the per curiam opinion went out of its way to mention that Congress, in legislation whose enactment predated Section 3, had indeed “effectively provided an additional procedure for enforcing disqualification” by making “engaging in insurrection or rebellion … a federal crime punishable by disqualification from holding office under the United States”; the opinion also noted that a “successor” to that legislation “remains on the books today.”
Many will no doubt catch the transparent implication that, if the former president or other future insurrectionists permanently escape disqualification, that result will be attributable to whoever controls the Justice Department at any given time, not to any action by the Court. But that intended implication overlooks the point that, were that statute all that mattered, a simple majority of Congress could remove the disqualification penalty from that criminal statute, leaving Section 3 unenforceable again. It also conveniently ignores the fact—not denied even by this majority—that Section 3 was specifically intended and written to make criminal conviction unnecessary for disqualifying an insurrectionist from seeking or holding office in the future.
There is, of course, no possibility whatsoever that the statute, 18 U.S. Code § 2383, will play any role in the former president’s eligibility in this election cycle. And the difficulty of enacting legislation of the sort the majority declared essential makes it exceedingly unlikely that anyone who engages in an insurrection against the U.S. Constitution after taking an oath as an officer to support it will ever be disqualified under the Fourteenth Amendment. Thus, as concurring Justices Sotomayor, Kagan, and Jackson damningly noted, the majority’s gratuitous resolution of “novel constitutional questions” about how Section 3 could be enforced in the future was plainly intended “to insulate this Court and [Trump] from future controversy” while insulating “all alleged insurrectionists from future challenges to their holding federal office.”
The five-justice majority came to its constitutionally unsupported view that states can disqualify insurrectionists from state, but not federal, office by pronouncing incongruous a conclusion that would find—nestled within a constitutional amendment that generally expanded “‘federal power at the expense of state autonomy’”—anything that would “give States new powers to determine who may hold the Presidency” or indeed any other federal office.
But, as many amicus briefs conclusively demonstrated, the Court’s description of how the Fourteenth Amendment altered the intricate relationship of state and federal powers was an absurdly oversimplified and ahistorical caricature. Among the Court’s most basic errors was that it described this state action to enforce Section 3 as a “new power” requiring an affirmative “delegation”—an explicit assignment of authority—elsewhere in the Constitution. If the Court had to identify such a delegation, which it did not, it need have looked no further than the elections and electors clauses of Articles I and II, respectively, which indisputably assign the determination of presidential qualification and disqualification to the states, at least in the first instance. Instead, the Court dismissed that constitutional assignment out of hand by asserting, with no explanation, that “there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates.” Of course, no explanation could have sufficed, which is why none was offered. Under the Constitution, there is every reason to believe that these clauses in fact do authorize the states to enforce Section 3 against federal officeholders and candidates.
In the end, without even trying to address the compelling analysis of the three-justice concurrence, the majority violated the precept rightly insisted on by Chief Justice John Roberts in objecting to how far the Court had gone in Dobbs v. Jackson Women’s Health Organization two years earlier, which stated that, when “it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” The three justices—objecting that the Court had departed from that “vital principle” by “deciding not just this case, but challenges that might arise in the future”—quoted Justice Stephen Breyer’s dissent in Bush v. Gore: “What it does today, the Court should have left undone.” “In a sensitive case crying out for judicial restraint,” the concurring justices wrote, the majority simply “abandoned” all restraint.
But whatever praise the three justices deserve for distancing themselves from the majority’s extraordinary overreach, they cannot be excused for joining the majority in holding—wrongly, in light of the Supreme Court’s obvious power and responsibility to ensure uniformity—that the Court’s decision to disempower Colorado from playing its part in the ultimate determination was somehow necessary to prevent the emergence of “a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.” By insisting that states have no role to play in initiating the disqualification of insurrectionists from federal office even with the Supreme Court sitting to review what each state does so as to ensure nationwide consistency, all nine justices stood federalism on its head.
Whether born of a steeled determination not to disqualify the presumptive Republican nominee from the presidency, or of a debilitating fear of even deciding whether the Constitution disqualifies the presumptive Republican nominee precisely because he is the presumptive Republican nominee, this step that all nine justices took represents a constitutionally unforgivable departure from the fundamental truth of our republic that “no man is above the law.”
Nor can their action be explained, much less justified, by the converse truth that neither is any man beneath the law. If the process Colorado had followed to determine Trump’s disqualification could have been deemed constitutionally inadequate as a foundation for the Supreme Court to have affirmed the ruling of the state’s highest court and applied it to him nationwide, this would be a different case altogether. But nothing any of the justices said even hinted at such inadequacy. On the contrary, the week-long trial by the Colorado state court, which had indisputable jurisdiction to consider the matter, undoubtedly more than satisfied the constitutional requirements for disqualifying the former president under Section 3. At that trial, he was afforded every opportunity to defend himself against the charge that he had personally “engaged” in an “insurrection or rebellion” against the Constitution. Not a single justice suggested that the process was less than what the former president was due. That trial ended in a finding by “clear and convincing evidence” that he had not only engaged in that insurrection but had orchestrated the entire months-long effort to obstruct the joint session’s official proceeding, preventing the peaceful transfer of power for the first time in American history. Not a single justice suggested that a more stringent standard of proof was required or that the courts below applied an insufficiently rigorous definition of insurrection. No justice suggested that the First Amendment or anything else in the Constitution shielded the former president from the reach of Section 3.
Nor did any justice offer any other reason to doubt the correctness of the conclusion by both courts below that the former president’s conduct was indeed the paradigm of an insurrection or a rebellion against the Constitution, disqualifying him from the presidency ever again. Nor, finally, is it easy to imagine a more thoroughgoing misinterpretation of the Fourteenth Amendment and scrambling of the division of responsibilities that the amendment carefully assigns. In supposedly following the blueprint of the amendment, which specifically provides a method for oath-breaking insurrectionists to be exempted from Section 3’s disqualification by joint action on the part of two-thirds of both houses of Congress, the Court’s majority decreed that mere inaction by Congress would suffice to lift that disqualification. Thus, by effectively flipping on its head the congressional power to remove disqualification, the Court seized for itself the role that the Fourteenth Amendment expressly and deliberately left to Congress—that of deciding whether a particular oath-breaking insurrectionist poses too little danger to the republic to be permanently barred from holding or seeking public office.
Far from preventing what it sought to depict as state usurpation of a federal responsibility, the Supreme Court itself usurped a congressional responsibility, and it did so in the name of protecting a congressional prerogative, that of enacting enforcement legislation under Section 5 of the Fourteenth Amendment.
Our highest court dramatically and dangerously betrayed its obligation to enforce what once was the Constitution’s safety net for America’s democracy. The Supreme Court has now rendered that safety net a dead letter, effectively rescinding it as if it had never been enacted.