The Volokh Conspiracy
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In Print: Sweeping Section Three Under the Rug
My latest article with Michael Stokes Paulsen is in print
Just in time for the inauguration today of Donald J. Trump, my second article with Michael Stokes Paulsen is now published in final form in the Harvard Law Review—Sweeping Section Three Under the Rug: A Comment on Trump v. Anderson.
From the introduction:
"Great cases," the saying goes, "like hard cases make bad law." The aphorism, from Justice Holmes's dissent in the Northern Securities case, came with an explanation:
Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.
Like so many of Justice Holmes's maxims, this one does not always hold true. Some of the Supreme Court's great successes in constitutional law have also been "great cases" in the Holmesian sense: They concerned an incident "of immediate overwhelming interest" and potentially serious consequence to the life of the nation and were decided under intense public scrutiny and often urgency — and yet they were decided well and soundly. Urgency, high consequence, and public attention at least sometimes combine to concentrate the judicial mind powerfully, to good and memorable effect.
We think of Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) as such a case — perhaps the leading example of exemplary judicial performance under severe time and political pressure, where the stakes were high. Youngstown raced through the judicial process, bottom to top, at breakneck speed, less than eight weeks' time elapsing from President Truman's executive order seizing the nation's steel mills in April 1952 to the Supreme Court's 6–3 decision on June 2 invalidating that order. The Court rose to the occasion magnificently, producing some of the most important, powerfully reasoned judicial opinions concerning fundamental questions of separation of powers in its history.
New York Times Co. v. United States9 (The Pentagon Papers Case) is another "great case" that seems to defy Justice Holmes's axiom, a prominent First Amendment landmark concerning freedom of the press from prior restraint, decided by the Court on an extraordinarily compressed time schedule that made Youngstown look positively leisurely: Two federal appellate courts ruled, differently, on the same day, June 23, 1971, on whether the federal government could obtain an injunction against two newspapers' publishing of classified information. Motions for interim relief and expedited consideration were filed in the Supreme Court the next day, June 24. The Court ordered briefs submitted by June 26, held oral arguments that same day, and issued its judgment and opinions on June 30 — just one week after the lower courts had ruled. Again, the Court rose to the occasion. While there was no single rationale for the judgment — in that sense, the Court did not "make . . . law" at all — the individual opinions of all nine of the Justices combined to form an important 6–3 ruling against the government and for freedom of the press. . .
Some great cases have produced very good judicial decisions. But at least some support Justice Holmes's claim: Sometimes the magnitude of the stakes; the "immediate overwhelming interest" in the outcome; partisan passions; and a sense of urgency compressing the time for analysis and judgment all come together to irretrievably skew the performance of judicial duty. Sometimes great cases overwhelm judges' capacity to engage in careful and principled legal reasoning.
Trump v. Anderson was such a case.
It was a great and momentous case by any measure. It presented the hugely important constitutional question whether a former President of the United States is constitutionally disqualified from holding that office again — or any significant office — by Section Three of the Fourteenth Amendment. Specifically, it posed the explosive question whether the 45th President of the United States, having sworn an oath to support the Constitution as President, had subsequently "engaged in" conduct constituting "insurrection or rebellion" against the U.S. constitutional order. The facts found at trial showed that then-President Donald Trump engaged in an attempt to overthrow the lawful result of the presidential election of 2020, including by summoning a mob of supporters to Washington, D.C., on January 6, 2021, and inciting them to attack the Capitol, with the goal of preventing the electoral count from certifying Trump's lawful defeat. The Colorado Supreme Court had held, as a matter of federal constitutional law, that Trump — again a candidate for the presidency in 2024 — was disqualified from that office by Section Three and that this in turn made him legally ineligible to the state's ballot as a matter of Colorado election law. On January 5th, 2024, the U.S. Supreme Court agreed to hear the case and set an expedited briefing schedule with oral arguments to follow on February 8th.
The stakes of the U.S. Supreme Court's decision were high and immediate. If the Court were to agree with the Colorado Supreme Court that Section Three constitutionally barred Trump from the presidency, that would as a practical matter eliminate the leading candidate of one of the two major political parties, upending the nation's political dynamic. Such a holding might have been political dynamite: It could have led to serious domestic political unrest — perhaps even to violence.
The stakes of a decision in the opposite direction were equally enormous. If the Court were to hold, on the merits, that Trump was not constitutionally disqualified by Section Three — on the premise that, notwithstanding the facts found at trial and affirmed on appeal, the events of January 6, 2021, did not legally constitute an "insurrection"; or on the premise that Trump had not "engaged in" the insurrection himself; or on the premise that Section Three did not apply to Trump because the President of the United States is not an "officer of the United States" — that might well have been political dynamite too: Such a decision might be seen as politically motivated or lawless. It might even be seen as licensing Trump's conduct around January 6, 2021, and, more generally, his months-long efforts to overturn the result of the election and maintain himself in power. It might be seen to say that there are no legal consequences for an attempted coup d'etat. It might even enable — and ultimately did enable — the election of a constitutionally ineligible President who had engaged in insurrection against the United States.
Rarely have the stakes of a constitutional issue been so great. Given the high stakes and political consequences of whatever decision the Court reached, the case had "immediate overwhelming interest" to the public. On the merits, the constitutional questions presented by Section Three were not themselves intractable. Trump v. Anderson was a "great case" in terms of importance and urgency, but not a "hard case" in terms of the intrinsic difficulty of the legal questions presented. But the case presented several major constitutional questions, one after another, and several of them were fairly novel. Sorting through the issues presented by Section Three — attending carefully to constitutional text, structure, history, logic, and original meaning, and then faithfully applying that meaning — was not an afternoon's work. (And the Court did not believe it had a great many afternoons left in which to do the requisite work: The March 5 date of the Colorado primary loomed before it, less than a month after the date of oral argument.) Moreover, even if the law itself might not have been all that hard, the challenges of following the law where it led — of overcoming contrary initial instincts, inclinations, and intuitions; of being willing to displease friends, past allies, and powerful political figures or movements — might remain a difficulty.
All in all, the institutional, political, and personal pressures on the Justices presented by Trump v. Anderson were enormous. It is fair to say that Trump v. Anderson required the Justices to rise to the demands of the occasion in a way perhaps unrivaled in the Court's history.
They did not do so. Unlike great cases where the press of time and circumstances had the effect of concentrating the judicial mind to produce important landmark constitutional decisions, the Court produced a flimsy decision in a high-stakes, high-profile, high-intensity, tight-deadline case. Trump v. Anderson is, unfortunately, a prime example of exactly what Justice Holmes was concerned about. It was a "great case" that made risible constitutional law.
Attempting to rule narrowly and clearly, the Court ruled incoherently — leaving more fundamental issues unresolved and others in a state of confusion. Attempting to avoid making sweeping proclamations on major points of constitutional law, the Court ended up making a sweeping proclamation on a major point of constitutional law (and a fundamentally incompetent one at that). Attempting to "settle" a major constitutional dispute, the Court simultaneously settled very little and upended much. Attempting to manufacture a false unanimity, the Court succeeded only in fracturing more seriously. Attempting to sacrifice judicial craft for statesmanship, the Court sacrificed both.
In what follows in this Commentary, we explain exactly where, how, and why the Court went so wrong, and what lessons we should draw going forward.
In Part I, we analyze what the Supreme Court did — and, equally important, what it did not — decide in Trump v. Anderson. A careful reading of the opinions in the case reveals that, in the end, the Court held only that states lack power to enforce Section Three — or any other federal constitutional disqualifications from office — in state-conducted elections for federal elective office.
That is all that it held. The Court did not hold, on the merits, that Trump was eligible to office under the standards of Section Three — it did not say that the Colorado Supreme Court was wrong on this point. The Court did not hold that the presidency is exempt from Section Three. The Court did not hold that the events leading to and culminating in the January 6 attack on the Capitol failed to satisfy the constitutional standard for an "insurrection." Nor did the Court hold that Trump had not "engaged in" that insurrection. The Court did not confront the factual findings or ultimate legal conclusions of the Colorado courts on these points. Nor did the Court hold — though other readers, including even some of the concurring Justices, exhibited confusion on this point — that Section Three's constitutional ban is not "self-executing"; that is, that Section Three is not a directly operative constitutional rule but instead requires enforcement legislation by Congress as a prerequisite to having legal force.
The Court in Trump v. Anderson held none of these things. Nothing in the case contradicts the core conclusion we reached in our prior scholarship: Donald Trump is constitutionally disqualified from the presidency and may not lawfully serve in that office, or any other (unless Congress removes the disqualification by two-thirds majorities of both houses). If Donald Trump was constitutionally ineligible to the presidency on March 3, 2024 — the day before the Court's decision — he remained constitutionally ineligible on March 5, the day after the decision. Trump v. Anderson rejected only a method of enforcing that disqualification — state election law.
In Part II, we evaluate the merits of the Court's one actual holding in Trump v. Anderson — the holding that states lack power to enforce or apply the requirements of Section Three in conducting presidential elections. This holding inverts basic principles of constitutional law. It directly contradicts Article II's designedly state-centric arrangement for presidential elections. Of all the arguments for reversing the Colorado Supreme Court, the Court somehow settled on the worst.
In Part III we consider the lessons of the Court's decision. We first consider and reflect on the mixture of possible motivations of the Justices. What led them to decide the case in this peculiar and unfortunate fashion? We then consider the case's implications for questions of legal interpretive method. The decision and opinions in Trump v. Anderson plainly are not faithful to principles of "originalism." Yet that is the method to which many of the Justices express adherence. (It is our methodology.) Does Trump v. Anderson reveal the bankruptcy, or futility, of originalism as a constitutional interpretive method (as some have charged)? Or does it merely demonstrate the inconsistency, hypocrisy, or error of some of its would-be practitioners?
Finally, we pose questions about the limited scope of Trump v. Anderson going forward. Because the Court chose to sweep Section Three under the rug, rather than directly confronting its meaning and application, it left open a shocking range of possibilities. Is Congress bound, in the exercise of its independent constitutional responsibilities, and especially in the exercise of powers not covered by the Court's decision, to treat the Section Three questions as settled? Might states, as their own laws permit, be able to simply circumvent the Court's decision by exercising directly and explicitly their powers under Article II, section 1, clause 2 of the Constitution with respect to the "Manner" of selecting presidential electors — and thereby award their electoral votes on the basis of Section Three after all? Might courts in future cases need to decide whether Trump — even though elected and inaugurated — can lawfully exercise constitutional authority as President? Did the Court merely postpone the true day of constitutional reckoning?
I realize that many readers disagree with the analysis in our original article, The Sweep and Force of Section Three. But even those who disagree should disagree for better reasons than the ones given by the Supreme Court in Trump v. Anderson. And I realize others may find the issue quite inconvenient or tiresome to keep discussing at this stage, but as we say in the last part of our Commentary:
We have no illusions that any of this will happen, or that the Supreme Court would not intervene to stop it from happening. As this piece goes to press, there seems to be little political will or practical interest in enforcing Section Three. And even if there were, the Supreme Court that decided Trump v. Anderson might well decide other cases in a similar spirit. If called upon to extend the fallacious reasoning of Trump v. Anderson, the Court might well extend it, by hook or by crook. The ominous references in the per curiam to the "acute" "disruption" that might occur "if Section 3 enforcement were attempted after the Nation has voted" and which might "arriv[e] at any time or different times, up to and perhaps beyond the Inauguration" may well have been intended as a shot across the bow, and other constitutional actors may well be afraid of getting shot. The nation having watched the Supreme Court sweep Section Three under the rug, it may well be that nobody will dare to lift the rug up for a long time. But if that is what happens, we should have no illusions that that is what the opinion in Trump v. Anderson actually requires — let alone what the Constitution requires.
Sweeping Section Three Under the Rug: A Comment on Trump v. Anderson.
