If you are a student of very recent legal history, you might have found yourself scratching your head in recent weeks, as some commentators on the left and the anti-Trump right have joined forced in a dubious, long-shot effort to argue that Donald Trump is constitutionally ineligible to run for reelection. They want to use lawsuits to disqualify Trump from state ballots before next year’s elections on a theory that centers on a largely forgotten section of the 14th Amendment to punish Trump’s effort to overturn the 2020 election results. It sounds a lot like One Neat Trick that could get rid of Trump once and for all, but the boosterism has bordered on naïve and at times disingenuous. The impulse reflects a familiar reflex among some of Trump’s political opponents to root for a legal miracle — some sort of deus ex machina — that might rid them of Trump without doing the hard work of winning an election.
But reality requires us to acknowledge that this dispute, if it has any chance of success, will ultimately end up in the Supreme Court. And no one, least of all liberals, should assume that they will save the country from Trump.
The underlying legal question is whether the 14th Amendment of the Constitution, adopted in 1868 in the wake of the Civil War, disqualifies Trump from being president again. The relevant text precludes anyone who once served “as an officer of the United States” from holding “any office” in the government if they “have engaged in insurrection or rebellion” against the United States or have “given aid or comfort to the enemies thereof.” Congress may “remove such disability” if two-thirds of each chamber agree to do so.
The public debate over the applicability of the amendment kicked into high gear following the release last month of a law-review article written by William Baude and Michael Stokes Paulsen, two conservative constitutional law professors who argue that, under an originalist interpretation of the provision, Trump is barred from running for office. The notion picked up steam in some quarters of the press, as well as an endorsement from two prominent legal thinkers, but it has since drawn vocal objections from the right on legal, political, and policy grounds. Just this month, one early and prominent supporter of the effort — a co-founder of the Federalist Society who had initially called the article “a tour de force” — changed his mind.
The originalist framework can lead its adherents to some strange places, particularly if they have already made up their minds about what the result should be. Baude and Paulsen, for instance, breeze past two statutes from the late 1800s — not that long after the 14th Amendment went into effect — that complicate their analysis, but they produce no meaningful or contemporaneous historical evidence to support their conclusions.
Somewhat amusingly, the authors go to great lengths to shore up their position against the very unhelpful fact that it was rejected the year after the 14th Amendment was adopted. Chief Justice Salmon Chase issued a decision that dismissed the idea that the provision created a sweeping and self-executing prohibition on public office and concluded that Congress had to pass legislation to implement it. Chase wrote the opinion while “riding circuit,” so it is not the law of the Supreme Court, but under ordinary circumstances, this would seem to be pretty devastating for originalist legal scholars. After all, are they better positioned to conclude that Chase’s interpretation “does not hold up as an original matter” — their words — than a sitting Chief Justice who was alive at the time and explicitly contemplated the question? There are also plenty of legitimately unsettled questions concerning the application of the 14th Amendment to Trump, including whether the president is himself “an officer of the United States” or if instead that phrase applies only to subordinate officials in the government.
Baude and Paulsen argue that the 14th Amendment “can and should be enforced by every official, state or federal, who judges qualifications,” but that interpretation of the law is also running into some problems — this time among government officials who are actually alive. Democratic secretaries of state are publicly disavowing the idea that they can keep Trump off the ballot unilaterally and instead want to kick the issue to the courts. Republican Brad Raffensperger of Georgia, perhaps the country’s most famous and well-regarded secretary of state thanks to Trump, has also come out against the idea.
As of now, there are two lawsuits that have been filed by liberal groups seeking to keep Trump off the ballot in Colorado and Minnesota. If one of these lawsuits — or others that are likely to be filed — actually results in Trump being removed from a state’s ballot, we can safely assume that the case will make its way to the Supreme Court for the final word.
If you hold the sitting Supreme Court in low regard — as most of the country now does — you have probably already stopped counting on them to do the “right” thing, whatever you may think it is. After all, until last year, the Court’s decisions had established a right to abortion in this country, had repeatedly upheld the use of affirmative action in higher education, and had made clear that businesses open to the public cannot discriminate against members of protected classes, including same-sex couples. None of those things is true anymore thanks to the conservative supermajority on the Court that was installed by Trump.
Those decisions, which were all wrong on the merits, rightly infuriated many liberals, and calls for reform of the high court on the left are now commonplace (despite being ignored by the White House). Meanwhile, a series of ethics controversies in recent months concerning ultraconservative justices Samuel Alito and Clarence Thomas have generated more public criticism, with little evident concern on the part of Chief Justice John Roberts or his conservative colleagues.
All of this, as a practical matter, is highly relevant to the effort to remove Trump from the ballot.
For one thing, even assuming that there was an airtight case on originalist grounds, it would be unwise to assume that it will actually sway votes among the conservative justices. Whatever one makes of originalism as an academic pursuit, it is not practiced by conservative justices in anything resembling a legitimately principled or objective manner. All too often, originalism in the courts is little more than an outcome-driven interpretive method that somehow — magically — almost always aligns with the political and policy prerogatives of the Republican Party.
Then there are problems of math and individual psychology. Very crudely, let us assume for the sake of argument that the three liberal justices would support disqualifying Trump — if not on strictly originalist grounds, then using contemporary methods of liberal constitutional interpretation that might lead to the same result following serious examination. At the same time, we can probably safely assume that Alito and Thomas, who seem to define their judicial outlooks in opposition to anything that liberals want, would oppose that result.
That would mean that liberals would need to attract two of the four remaining conservative justices in order to cobble together a majority. Three of those justices (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) were appointed by Trump, but disqualifying him under the 14th Amendment would require them to directly confront the fact that their legacies are closely intertwined with his — that they are on the Court issuing rulings for decades to come because a historically awful president put them there. Nothing I have seen from them suggests to me that they have the self-awareness, humility, or intellectual fortitude to do this.
Three justices in this group (Roberts, Kavanaugh, and Barrett) also share the dubious distinction of having worked for Republicans on the litigation in Bush v. Gore, when conservatives on the Supreme Court used a deeply flawed and tendentious analysis to put George W. Bush in the White House. (It is no mere coincidence that they ended up on the Supreme Court: Working on that litigation was a major career boost for young Republican lawyers.) Perhaps some of these justices will turn out to surprise us if the question of Trump’s eligibility reaches them, but my general operating assumption is that this is a group of people who are perfectly content to contort the legal system in service of the Republican Party’s interests when the stakes are high, particularly if those interests align with their own.
It was one thing for them to have rejected Trump’s various legal efforts to overturn the 2020 election in the courts after he lost, but it would be another thing entirely for them to prevent him from running altogether, particularly when most Republican politicians and Republican voters strongly support his candidacy. For this to work, at a bare minimum, a comprehensive and compelling legal argument with broad ideological appeal and robust bipartisan support would likely need to come together.
That may emerge as litigation proceeds, and as scholars and lawyers continue to debate and refine their ideas, but it is not here yet. For now, Trump’s opponents need to focus on beating him the old-fashioned way — at the ballot box.
