The Supreme Court Will Let Trump Off The Hook

(Bloomberg Opinion) -- From the oral argument at the Supreme Court yesterday, it’s pretty clear that the justices are going to overturn the Colorado ruling that blocked Donald Trump from the state’s presidential ballot. Colorado had ruled that, as an insurrectionist, he was barred from holding office under Section 3 of the 14th Amendment. The Supreme Court, however, showed no interest in engaging the question of whether the former president actually engaged in insurrection. Instead, the justices sorted through a range of possible arguments they might be able to use to reinstate Trump’s candidacy in Colorado.

Behind their thinking loomed a sort of vague intuition: The idea that a single state shouldn’t be able to block a candidate from running for president of the whole country. Despite the threat Trump poses to our constitutional democracy, and despite his actions on and around Jan. 6, there is something to that logic.

The last thing we need is for some future state supreme court — where justices are often elected — to follow partisan sentiment and declare some perfectly innocuous presidential candidate guilty of insurrection. If you think that could never happen, think again. Almost half the members of the House of Representatives recently voted to impeach the Secretary of Homeland Security for doing nothing more nefarious than enforcing federal immigration policy in a way they didn’t like.

This brings us to the interesting-but-not-perhaps-existential question of exactly how the Supreme Court will explain why it’s overturning the Colorado ban on Trump’s candidacy.

The leading candidate was, it appeared, for the court to rely on an 1869 decision known as Griffin’s Case which was written by Chief Justice Salmon P. Chase. In that case, a convicted felon argued that, since the judge who presided over his trial had been an insurrectionist, his conviction should be overturned. The case came before a federal circuit court, not the Supreme Court, but Chase wrote the opinion because in those days, Supreme Court justices had to do double duty, sitting as circuit judges some of the time.

Chase’s argument in Griffin’s Case was that Section 3 of the 14th Amendment doesn’t automatically block former insurrectionists from office. Rather, it gives Congress the authority to pass a law that would block them. In 1869, Congress hadn’t done so — so the judge could stay in office and convictions reached in his courtroom weren’t invalid. In 1870, Congress did pass a law implementing Section 3. It stayed on the books until 1948, when it was repealed as part of a reorganization of the US Code. (No one knows exactly why the law was taken out — not even Chief Justice John Roberts, who asked about that in oral argument and got no satisfactory response. Possibly it just seemed obsolete.)

There are various problems with Chase’s reasoning in Griffin’s Case, the most prominent being that the words of Section 3 don’t actually say anything about Congress having to take action to make the ban effective. And because it wasn’t cited by the Supreme Court, but by a circuit court, it isn’t binding.

Nonetheless, Griffin’s Case is the only real precedent that exists. And as Justice Brett Kavanaugh pointed out during the oral argument, it was the decision that was relied on by Congress when it passed the law in 1870 — so it has formed the backdrop to all subsequent thinking about Section 3.

So Griffin’s Case provides the value of allowing the court to rely on precedent, thin as that precedent may be. But Griffin’s Case has another benefit: It can also be interpreted to support the idea that individual states shouldn’t be in charge of blocking presidential candidates as insurrectionists. The logic of Griffin’s Case puts Congress in charge of applying Section 3. That, in turn, could plausibly take states out of the process altogether.

Discussion of the Section 3 issue hasn’t paid much attention to Griffin’s Case (although I featured it in a column back in August). That’s partly because the conservative law professors who put the whole Section 3 issue on the front burner disparaged Chase’s decision in their article. They are leading originalists who don’t care that much about precedent. As for liberal commentators, perhaps they didn’t want to give the Supreme Court any excuse to rule in Trump’s favor — or maybe they’d rather keep the debate focused on Trump’s inexcusable behavior in trying to overturn the 2020 election results.

Whatever the reasons Griffin’s Case has stayed in the shadows, it’s worth noting now that the deeper logic behind it was pragmatism — both the pragmatism of not overturning criminal convictions and the pragmatism of the court trying to make Congress take responsibility for barring former insurrectionists from office.

If today’s justices overturn the Colorado decision, that will be a kind pragmatism, too.

In the end, it would be absurd for the presidential election to turn on the decisions of state courts. Better to force the voting public to take responsibility for who it elects president. I admit that makes me as nervous as the next anti-Trump voter. But if democracy isn’t strong enough to withstand Trump, maybe there’s something wrong with democracy itself.

More From Noah Feldman at Bloomberg Opinion:

• Alas, Trump Is Still Eligible to Run for Office
• Supreme Court’s Options Narrow as Trump Loses Each Appeal
• Prospect of a Second Trump Term Demands Preparation, Not Panic

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”

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