The title to this blog post is the answer to a question facing the U.S. Supreme Court.
The question is:
"What do you do when the plain text of the Constitution conflicts with political convenience?"
This blog post makes a prediction. The Supreme Court will reverse the decision by Colorado and Maine to keep Trump off the ballot. They will ditch the Constitution.
The Supreme Court has a dilemma. So far two states say Trump is ineligible to be president under the terms of the 14th Amendment. The justices watched with their own eyes an organized attempt to overthrow an election that culminated in a violent attack on the Capitol at a pivotal moment. It wasn't an idle tourist visit by some over-enthusiastic partisans. Trump didn't just give the attack aid and comfort. He coordinated it. He authorized it. He made phone calls. He gave speeches. Trump had a plan that nearly worked: Persuade partisans to sign false documents as alternative electors, and then a vice president would pretend to have the power to discard the legitimate electors in favor of the alternates. The president told people to go to the Capitol to intimidate the vice president and Congress, and people did as he urged. People died in the melee.
It nearly worked. Vice President Michael Pence was under intense pressure. He called it a close decision.
It sure looks like an insurrection -- a failed one.
The complication for the Supreme Court is that several members of it -- probably six of the nine -- approved of the potential result of the insurrection had it worked, Trump staying in office. It is awkward for those six to rule that what they witnessed was part of something fundamentally wrong and illegal since the wife of a colleague took active part in the overall plot. She wrote state legislators urging them to ignore the election result in their state and submit an alternative slate of electors. Calling it an insurrection plot implicates her.
Moreover, if the Supreme Cort rules that Trump did what they saw him do, then the Constitution forces them to remove a popular choice for president. They don't want to be in the middle of this.
The Court is hoist on its own petard of textualism. The Constitution repeatedly prohibits popular choices. It puts up boundaries against popular majorities to stop them from decisions that would destroy the republic and our freedom. The Constitution says that presidents must be 35, native-born, and cannot serve more than two terms -- even if such a person would be the popular choice. Obama was the most popular politician in America in 2016, but he was ineligible to run for a third term. The Constitution said so. Congress and the states might have clear majorities wishing to prohibit speech praising Nazis or communism, or prohibiting the practice of Islam, or banning Latter Day Saints from doing missionary work in the U.S., or prohibiting Americans from bearing arms. Sorry. Cannot do. The Constitution's text prohibits it. A majority of Americans thought that reproductive privacy was embedded in the Fourth Amendment. Sorry. It's implied, maybe, the Court said, but it's not in the text, so no. If people want outcomes that aren't in the text, change the text, not the outcome. That is textualism.
The Constitution says engaging in insurrections, or giving aid and comfort to them, is disqualifying, unless Congress by a two-thirds vote says otherwise. There is a constitutional procedure here, in the text.
I predict the Supreme Court will be rank hypocrites. The majority has a result they want and it is directly counter to the text. It lets the Court rule pretending to disclaim power, saying that the people, not the Supreme Court should decide who is president, at least in this case. They will say Trump was maybe involved in a protest, not an insurrection. That lets them avoid declaring that Justice Thomas' wife was involved in something dangerously wrong. Their hypocrisy on textualism will be an embarrassment, but if Trump wins in 2024, the GOP can whitewash the events surrounding January 6. Trump will pardon everyone and stop all prosecutions, and call the participants patriots. If Trump loses in 2024, the Court can say that the people chose, and it all worked out without them interfering.
The only long-term victim here is the Constitution.
Confirming the Colorado and Maine decisions would be a giant step toward re-establishing the Supreme Court's non-partisan legitimacy, but that is a long-term benefit with short-term pain. Trump will be outraged. Republicans in Congress will pretend to be outraged, even though in reality most will be relieved. But the Court won't do the smart thing. They will do the hypocritical thing. Short term, it is easier to enable Trump. That is the pattern. Officeholders do it. The Court will do it.
The U.S. won't lose our constitutional democracy because German, Japanese, or Russian troops occupy the Capitol. We will do it to ourselves.
Sometimes I hate it when you’re right. And you’re right.
I think you are correct, but I think their dodge will be simpler. They will state that since no legal procedure has found Trump guilty of insurrection, he cannot be removed from the ballot for that reason