The Naïve Pundits Enabling the Supreme Court’s Big Con

The Supreme Court left a lot of technical legalese to parse through in its unanimous ruling that Colorado cannot disqualify President Trump from appearing on the presidential ballot in accordance with Section 3 of the Fourteenth Amendment. Much of the reasoning on display is outright illogical—there are some wan appeals to handpicked “textual” bases, tethered to vaguely stated constitutional principles, all of which collide in a bizarre and unworkable solution to the original problem—but the crux of the court’s opinion is summed up in a simple statement. “Nothing in the Constitution,” the court writes, “requires that we endure such chaos.”

The chaos, of course, refers to the fact that different states would likely come to different conclusions regarding whether Trump is an insurrectionist, and thus disqualified pursuant to Section 3. Despite the Court’s attempt to dress up this justification in paeans to murky concepts like federalism and “serious questions about the scope of [state] power,” that is what this decision is about. The Supreme Court is concerned that disqualifying Trump will be messy. Too messy. Case closed.

That observation is certainly true—things definitely tend to get messy when a political party unequivocally chooses an insurrectionist as its nominee. Still, to conclude that the inquiry should end there is a puzzling move, particularly from this court. In fact, the very basis of concepts like textualism and originalism—professed to varying degrees by all six conservatives on the Supreme Court—is diametrically opposed to this sort of practical reading of the Constitution.

Prior to this week, the high court has gone out of its way to sow chaos galore without much concern about who would end up having to eat the crops sown from its rulings. If a “patchwork” of decisions by states regarding Trump’s eligibility amounts to unacceptable “chaos,” what to make of the Supreme Court’s decisions overturning Roe v. Wade or unleashing unlimited corporate spending into elections, or allowing states to disenfranchise gigantic swaths of Democratic voters?

The answer is obvious to anyone who has spent any time ruminating over difficult questions of constitutional law: There is no real, objective truth, and what is sensible or practical in any given scenario depends heavily on one’s personal, subjective values. It just so happens that the individuals in charge of interpreting the law in this country have particularly bad values. This sort of “textualism, unless I say so” is reminiscent of Justice Antonin Scalia’s statement, “I’m an originalist and a textualist, not a nut.” That observation—that judgment is always required and no one method of interpretation can ever reveal the correct answer in every given scenario—should serve as definitive proof that much of what forms the body of recent conservative jurisprudence is sheer nonsense. Yet the idea that judges are doing something different and special, that courts are engaged in some truth-seeking enterprise separate from politics, endures.

A stark illustration of this dynamic occurred just last week, when the Supreme Court decided that it will hear Trump’s frivolous argument that he is immune from criminal charges in connection with the January 6 insurrection. Anyone even remotely familiar with the case understands that Trump is merely seeking to delay his trial until after the presidential election, and that the Supreme Court was doing his bidding by allowing the effort to proceed.

But several prominent legal pundits concluded otherwise, insisting that we ignore the evidence right before our eyes because, well, this is a court, and courts do the right thing. CNN’s Elie Honig wrote, “While the result may be disappointing to many … it’s also the only proper way for judges to do their job.” The bigwig elections lawyer Marc Elias implored Democrats, “Don’t give up on the courts.” Law professor Steve Vladeck counseled that “we ought to at least account for the Court that we have” rather than “the Court we might want.” Meanwhile, Democratic leaders were nowhere to be found, once again sending the implicit message that the buck stops with the Supreme Court. The law’s the law, and our duty is simply to accept it.

This mentality—that it’s essential we “separate courts from politics,” that we “respect the rulings of courts”—is commonplace in American society, particularly among lawyers and judges. But when considering the reality of our current judicial order, it is entirely unclear what actual value these bland appeals to judicial neutrality serve. What is gained, for example, by pretending the court is not considering politics when it argues disqualifying Trump is too chaotic—a very clear political consideration? What is gained by proclaiming the court is just doing its work properly when it slow-walks Trump’s immunity case but fast-tracks its decision to keep Trump on the presidential ballot? What goal is furthered by refusing to “give up on the courts” when right-wing politicians openly hijack the judiciary for political gain?

Despite being repeated ad nauseam, this outlook has not achieved a more just, stable, or fair judicial system. To the contrary, the practical result has simply been to reinforce the proposition that progressives should always lose and be prohibited from ever fighting back. Indeed, it is noteworthy that the appeals to judicial neutrality, and the insistences that judges be treated as above politics, have almost exclusively been deployed to explain why progressives should simply accept defeat.

Our public consciousness, and our democracy generally, would be much better served if those in positions of power and influence were simply honest about courts and the law: There is nothing special or different about what judges are doing. The tortured, shamelessly inconsistent reasoning at the center of the Trump disqualification ruling is another stark reminder that the law is not a journey in search of truth but rather a mere process in which individuals make choices. When those choices distort our democratic order—or are drastically out of step with the values of the people they affect—there is no use in sitting back in our armchairs and professing allegiance to a fantastical—and unaccountable—form of government. It’s time for our leaders in law and politics to stop speaking down to us, and to start speaking up.