Good morning! It’s Friday, February 9, 2024. I was inside the Supreme Court on Thursday as the justices debated whether January 6th disqualified Donald Trump to be president; find my thoughts below.
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The Supreme Court’s conservative majority was always going to be skeptical of Colorado’s attempts to kick Donald Trump off the presidential ballot. But as time went on Thursday, it became increasingly clear that the court’s liberals were just as resistant to Colorado’s arguments.
The justices took turns floating several of the off-ramps available to them in the case. By the end of Thursday’s hearing, they seemed to have settled on one: individual states should not be able to use the 14th Amendment to disqualify candidates for the presidency without an act of Congress.
“Why should a single state have the ability to make this determination, not only for their own citizens, but for the rest of the nation?” Justice Elena Kagan asked.
“The whole point of the 14th Amendment was to restrict state power, right?” Chief Justice John Roberts added.
“What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide?” Justice Brett Kavanaugh asked the lawyer from Colorado. “Because your position has the effect of disenfranchising voters to a significant degree.”
Justice Ketanji Brown Jackson chimed in, too: “I guess my question is why the Framers would have designed a system that would – could — result in interim disuniformity in this way, where we have elections pending and different states suddenly saying you’re eligible, you’re not, on the basis of this kind of thing?”
You’d have to ask the Framers. I do think the justices are right that allowing Colorado to remove Trump from the ballot would lead to chaos and disenfranchisement — which might mean that the prudent move is not to let it happen. Supreme Court justices often do, and sometimes should, take practical considerations into account.
But, as a matter of history, it’s not clear to me that the disqualification would actually stray that far from the system for picking presidents envisioned by our Founding Fathers. If you look around, the system they left us is full of “disuniformity” at every turn, especially in the area of state-run election administration.
Much of this dispute, it seems to me, turns not on interpretation of the 14th Amendment but on one’s interpretation of the presidency itself: is it a national office, selected collectively by voters from across the country, or a federalist office, chosen through individual elections in each of the 50 states?
Our modern conception of the presidency, of course, is that it’s an “awfully national” institution, as Justice Kagan put it yesterday. We understand that who is allowed to appear on Colorado’s ballot matters to voters in Wyoming, and we expect the law to reflect that. But I do think it’s important for this conversation to note that the Founders had the exact opposite impression: “The immediate election of the President is to be made by the States in their political characters,” James Madison wrote in Federalist No. 39. They intended for the states to pick the president, not the voters.
This is clear in several features of the presidency as they designed it, some of which were mentioned at Thursday’s oral arguments. For one thing, the idea of a popular vote appears nowhere in the Constitution: the Framers allowed each state legislature to decide how their Electoral College votes would be distributed.
Below are the varied selection methods from the 1792 election:
Ever since the 1868 election — incidentally, shortly after the 14th Amendment was adopted — every state has allowed their electors to be chosen by popular vote. But that happened only after decades of patchwork selection methods — and, as the Supreme Court affirmed in Bush v. Gore, there would be nothing stopping a state legislature from yanking the selection power back for themselves, even today. A system of “disuniformity,” indeed.
The selection power is given to the states under Article II, Section 1, Clause 2 of the Constitution, which has also been interpreted to give states great leeway in other facets of presidential election administration (and was repeatedly cited by the Colorado lawyer on Thursday).
Polls close at 6 p.m. in Indiana, but at 9 p.m. in New York — even when voters in both states are casting ballots for the same, “awfully national” office. In 49 states, voters must be registered in some way before casting presidential ballots; in North Dakota, they do not. Most states allow “write-in” presidential candidates, but eight states prohibit them. We still elect our presidents by patchwork, even if we like to think we don’t.
This leeway generally also extends to printing ballots and determining who will be on them. In Idaho, candidates must pay $50,000 to appear on a presidential ballot. As Justice Kagan said Thursday: “What’s a state doing deciding who other citizens get to vote for president?” What if a near-majority of the country wants a president with only $49,999 to their name, but Idaho is preventing that candidate from receiving the necessary electoral votes?
This idea of such an uneven election process would not have been odd to the Founding Generation — or to the 14th Amendment Generation, either. After all, Abraham Lincoln didn’t need to be disqualified from Southern ballots in 1860; the system of ballot-printing was then so haphazard that he merely wasn’t offered as an option to voters in those states.
Sitting in the Supreme Court chamber on Thursday, I found myself thinking about Cenk Uygur, the Turkish-born liberal commentator who is currently running for the White House. Several states, including Texas, Minnesota, and Connecticut, have placed him on their Democratic primary ballots. Other states, invoking the Constitution’s requirement that the president be a natural-born citizen, have not.
Uygur is fighting a legal battle on these grounds, but nobody is paying it much attention because he is a fringe figure with little popular support. What if Donald Trump had been banished from the Republican Party after January 6th, I found myself wondering, and was widely considered — even by GOP leaders — to be an insurrectionist? What if he still ran for president this year, but controlled only around 15% of the Republican vote, instead of his current 75%?
In this counterfactual, under the court’s theory — not so much that states can’t exert influence over the presidential vote, which clearly they can, but they shouldn’t if it would have such destabilizing consequences for other states — would Colorado be allowed to get away with what it’s doing now?
Perhaps, if Trump was not credibly seen as a possible president anyway, the court would adopt the 2012 opinion of Justice Neil Gorsuch, who wrote as a circuit court judge that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”
Maybe, maybe not. Even if the presidency is not so national as the justices tried to put it Thursday, clearly, 14th Amendment disqualification is different from states disqualifying candidates on other grounds. Cenk Uygur was plainly born in Turkey to non-American parents. The question behind this disqualification — whether Donald Trump engaged in insurrection — is a much more difficult one to answer.
But it was striking Thursday the extent to which the justices seemed uninterested in answering it. As we sat there, some 200 feet from the Capitol that was ransacked on January 6th, it took about an hour for the riot to even come up. Eventually, Justice Jackson asked Trump’s lawyer for a firm position on whether January 6th had been an insurrection — the attorney’s brief had somewhat evaded the point. “The events were shameful, criminal, violent, all of those things,” he responded, “but it did not qualify as an insurrection.”
The broader questions surrounding January 6th barely came up again. The justices came off like nine people who were anxiously looking for an exit: they knew they wanted to throw out the politically-charged hot potato in their hands, and they just had to choose a way to do it.
Personally, for the reasons I’ve laid out, I found the off-ramp they seemed to settle on to be the weaker one. The questions of whether Trump truly “engaged in insurrection” or counted as an “officer of the United States” were much less settled in my brain after listening to both sides present their arguments.
But the dynamics in the room would have been familiar to anyone who has been in any sort of committee meeting or involved in a group decision-making process. The justices’ leanings appeared mixed at first, but then, as soon as the liberal justices started sounding uncomfortable with one state making a decision of this gravity, the conservatives jumped on that point as well and suddenly — that was that. That kind of momentum is hard to arrest, whether it’s in a PTA meeting or a Supreme Court argument.
As I sat in that grand marble room — built to represent strength — I couldn’t help but think of fragility. The fragility of a system built on vaguely-written laws and dead judges who contradicted themselves and patchwork election systems, as much as we try to pretend otherwise. A system that depends on which technicality nine people want to use on a particular day.
Then again, that’s what the Founders envisioned, too. They knew they were building a government not of angels, but of men. They weren’t arrogant to believe they had created a perfect system; “more perfect” was all they hoped for.
I couldn’t decide if what I was witnessing Thursday was a sign of their system’s strengths or weaknesses. On one hand, our patchwork election process held in 2020, and on January 6th; the Capitol was still standing — I saw it right when I walked out of the Supreme Court. One of the most powerful political figures in the country was being forced to defend his eligibility before our highest judges.
On the other hand, Donald Trump decidedly did not join Cenk Uygur in the fringes of our politics. Instead of his career ending after January 6th — a “shameful” event, as his attorney said, whether or not it was an insurrection — he appears politically stronger than ever. The justices may be right: Trump could just be too big to disqualify.
Meanwhile, it sometimes seems as though January 6th has traveled the opposite direction, and shrunken to an afterthought of our political discourse — even at a court hearing ostensibly about it. Is that because our system was strong enough to persevere past the riot, or because it’s now too weak to answer for it?
More news to know.
While one candidate for president was defending his eligibility before the Supreme Court, the other was facing questions about his mental acuity. Welcome to America in 2024.
Special Counsel Robert Hur released his report yesterday after more than a year of investigating President Biden’s mishandling of classified documents. Hur decided that criminal charges were not “warranted,” but his scathing report concluded that Biden “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”
Even more politically damaging for Biden, Hur — who was appointed by Biden’s attorney general, but previously served in the Trump Justice Department — took aim at the president’s memory. In their interview, Hur said, Biden presented himself as a “sympathetic, well-meaning, elderly man with a poor memory,” unable to remember key dates from his vice presidency or even the year of his son’s passing.
In a press conference on Thursday, Biden, 81, pushed back against that allegation: “I’m well-meaning, and I’m an elderly man — and I know what the hell I’m doing,” he said. “My memory is fine,” he declared, expressing anger that Hur had mentioned his son’s death. “How in the hell dare he raise that?” Biden added.
- Hottest January on record pushes 12-month global average temps over 1.5 degree threshold for first time ever / CBS
- Ukraine-Israel Aid Package Clears Major Hurdle in Senate / WSJ
- Zelensky fires Ukraine’s military chief in major shakeup nearly two years into war / CNN
- Donald Trump wins Nevada’s Republican caucuses after being the only major candidate to participate / AP
The day ahead.
White House: President Biden will meet with German Chancellor Olaf Scholz in the Oval Office. VP Harris will deliver remarks on gun violence prevention. First Lady Biden will deliver remarks on cancer care in Charlotte, North Carolina, and participate in a campaign event in Franklin, Tennessee.
Congress: The Senate will continue consideration of the legislative package to provide aid to Ukraine, Israel, and Taiwan, without any border security provisions attached. The measure advanced in a 67-32 vote yesterday. The House is not in session.
Supreme Court: The justices have no oral arguments scheduled.
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