Revenge of the Statesmen

How statesmanship defeated nerdiness in Trump v. Anderson

Marbury v. Madison is poorly reasoned.

I realize that’s a sacrilegious thing to say about the GOAT of judicial decisions.  But sometimes, the truth hurts.

Most of you know the story of Marbury, but for those who don’t … Thomas Jefferson defeated John Adams, the incumbent, in the 1800 presidential election.  Two days before the end of his term, Adams appointed a bunch of judges and the Senate confirmed them. But his Secretary of State, John Marshall, didn’t get the commissions to the judges before Adams’ term ended.  Thomas Jefferson then took office, and his new Secretary of State, James Madison, wouldn’t deliver the commissions.  Marbury, one of the judges who didn’t get his commission, asked the Supreme Court for an order forcing Madison to deliver it.

The Chief Justice of the United States was John Marshall, the same John Marshall who signed the commissions.  The case put him in a tight spot.  On the one hand, he was mad that the commissions he signed weren’t being delivered and he wanted some way of dunking on T.J. On the other hand, T.J. wasn’t going to obey Marshall’s order. 

So here was Marshall’s solution:

• Declare that Madison acted illegally in refusing to deliver the commission, thus completing the Dunk Achievement.

• But still refuse to order Madison to deliver the commission, on the ground that the federal statute purporting to confer jurisdiction on the Supreme Court to issue such an order was unconstitutional (?!).

So Madison won the battle, but Marshall won the war—he expanded the judiciary’s power by establishing that the Supreme Court has the power to invalidate federal statutes, which is why we’re now blessed with the constitutional right to sell dogfighting videos and obtain trademarks on the word “FUCT.”

With my apologies to Marshall, Marbury is not a persuasive opinion.  The typical casebook critiques of Marbury are that (1) the supposedly unconstitutional federal statute could easily have been construed to not confer jurisdiction on the Supreme Court, thus avoiding a dramatic constitutional ruling, and (2) Marshall should have recused himself given that he personally signed Marbury’s commission and was responsible for delivering it.  I agree with those points, but my bigger problem is … why does it even matter that Madison didn’t deliver the commission?  Marshall said: “Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country.” If that’s so, who cares that Marbury didn’t have the document?  Why couldn’t Marbury just start being a judge? Just buy a robe and wig from the local haberdasher, show up at the courthouse, and start deciding cases?

There are lots of other twists and turns in Marbury that I won’t bore you with. Undoubtedly the law nerds of the time wrote many pamphlets raging about Marshall’s doctrinal errors.  They are all dead and forgotten.  Meanwhile, for his sins against logic, Marshall was rewarded with an enormous statue on the first floor of the Supreme Court building.

A masterpiece of statesmanship

Marbury establishes a proud national tradition of statesmanlike judicial decisions based on questionable rationales.  Trump v. Anderson carries forward that tradition. Consider its many statesmanlike virtues:

1. The immediate practical problems posed by the Colorado Supreme Court’s decision are solved.  No nightmare of Trump being on the ballot in some states but not others, write-in votes for Trump even in states where he’s excluded, etc.

2. The door remains open for Congress to enact Trump-related disqualification legislation.  This seems extremely unlikely, but if it doesn’t happen, that’s Congress’s fault, not the Supreme Court’s.

3. One reason I gave a 20% chance of Trump losing is that all of Trump’s legal arguments had serious weaknesses.  The Supreme Court dealt with this problem by basing its opinion on a rationale not proposed by Trump.  The Court didn’t even mention the two lead arguments in Trump’s brief, i.e., that Trump isn’t an “officer of the United States” and that Trump’s Tweets didn’t rise to the level of insurrection.

4. In many past controversial cases, the Court has been faced with a tough choice.  Cobble together a decision that achieves the legitimacy of unanimity?  Or ram through a broader opinion that gets the bare minimum of 5 Justices?  In this case the Court managed to do both! 

5. In the portion of the opinion that garnered only five votes, the Supreme Court intoned: “Congress’s Section 5 power is critical when it comes to Section 3.”  Do you know what this means?  I don’t know what this means.  Note, too, the statement in the last paragraph that “it is the combination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular rationale—that resolves this case.”  Despite the concurrence’s protestation that the Supreme Court “resolves many unsettled questions about Section 3,” the Court left itself with complete flexibility to resolve any future Section 3 dispute based on the facts on the ground at the time.

America demands results!

Trump v. Anderson is statesmanlike, but is it correct?

Well, let me begin with a few points in support of the Court’s decision.

There’s nothing wrong with thinking that a 9-0 Supreme Court decision is wrong—there are several unanimous decisions with which I personally disagree—but the fact that all nine Justices agreed on the disposition of the case is surely a point in favor of that disposition. Of course, four Colorado Supreme Court Justices went the other way, but it’s universally recognized that U.S. Supreme Court Justices are better at judging than lower-court judges; otherwise, how could they have become Justices?

Moreover, as I adverted to above, there’s no doubt that the Colorado Supreme Court’s ruling, if affirmed by the U.S. Supreme Court, would have created a very difficult situation.

1. Suppose the Court had upheld the Colorado Supreme Court’s decision based on a determination that the factual findings of the Colorado judge weren’t clearly erroneous.  Red-state judges would then have made factual findings that Trump didn’t engage in insurrection, which might also not be clearly erroneous, leading to Trump being on some ballots but not others.

2. To avoid this problem, the Supreme Court might have said that the undisputed factual record (Trump’s tweets, etc.) established that he engaged in insurrection.  But red states could and would still have kept Trump on the ballot, if only because Congress retained the authority to un-disqualify him.

3. Even in states where Trump wasn’t on the ballot, Trump would have kept running for President and urged his supporters to give him write-in votes.

4. To quote the Supreme Court: “An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.”

5. Another serious problem was that because there’s no case law on how to resolve Section 3 disputes, courts would be forced to develop procedures on the fly. Inevitably, courts would have preconceived substantive views on Trump’s eligibility, and would adopt procedures that would facilitate their preferred outcomes. The fact that Trump couldn’t point to any specific procedures that would have altered the outcome in Colorado isn’t a satisfactory response to this point.

6. Finally, there was tail risk of extreme political instability if certain states didn’t accept the outcome of the election. 

To avoid these outcomes, the Supreme Court applied reasoning that a naysayer might refer to as “results-oriented.”  But is that bad? What’s wrong with results-oriented reasoning?  The American people are pragmatic.  They want results!

The Constitution not being a suicide pact, perhaps the North Star of good judging should be: “don’t issue a judicial decision that might cause Civil War II, even if the probability of this event is 1%.”  All other considerations, including adherence to doctrinal niceties, are, arguably, secondary.

Moreover, opposition to originalism—heretofore a core tenet of progressive legal thought—holds that we should be able to choose our own path without being constrained by the dead hand of the past.  If New Yorkers want to get guns off the streets, who cares whether Sir John Knight was acquitted of violating the Statute of Northampton in friggin’ 1686?  Likewise, if the America of 2024 is best off permitting the election to proceed in an orderly fashion, shouldn’t we be able to just do that?  One gets the sense that some progressives, intoxicated by the thought of removing Trump from the ballot, actually started caring about what, e.g., Attorney General Stanbery thought in 1867, in violation of everything they stand for.

This sudden interest in the history of the Fourteenth Amendment is particularly incongruous in the area of voting rights, an area certainly implicated by a ruling seeking to prevent people from voting for their preferred presidential candidate.  How many supporters of the Colorado Supreme Court’s decision have carefully considered what Attorney General Stanbery would have thought about the Anderson-Burdick balancing test?

Finally, disqualifying a presidential candidate from the ballot under Section 3 is, to put it mildly, novel.  This doesn’t suggest that there’s a historical consensus that you can’t do it, as opposed to the question just not previously coming up.  But there’s a perfectly reasonable theory of jurisprudence under which courts shouldn’t depart from traditions, regardless of the source of those traditions.  America is a pretty great place, we have iPhones and beautiful national parks, so why rock the boat? 

Of course, one can point to other cases in which the Supreme Court was glad to do novel things. The Second Amendment, after all, wasn’t applied to invalidate any gun law from 1791 until 2008.  But in my opinion, pointing to purported methodological inconsistencies across cases is a kind of whining.  It is always possible to find a case that, at some level of generality, is inconsistent with another case.  Get over it!

State courts don’t need permission to apply the Constitution

The law nerds of the world—the propellerheads who insist on pure doctrinal logic and do not hesitate to mansplain that logic in Internet comment threads—will not be happy about the Supreme Court’s reasoning in Trump v. Anderson. 

(Happy statesman, sad nerd.)

The Supreme Court’s solution to the puzzle presented by Trump v. Anderson was that the Colorado Supreme Court could not order Trump removed from the ballot because the Fourteenth Amendment does not “affirmatively delegate” to States the ability to do this.

As noted above, Trump didn’t make this argument. Contrary to some initial reporting, the Supreme Court did not endorse the holding in Griffin’s Case, as Trump had urged.  Indeed, the Supreme Court’s decision suggests that Griffin’s Case was wrongly decided.  In Griffin’s Case, Chief Justice Chase, acting as a lower-court judge, concluded that Section 3 was completely inert until Congress took action, such that it could not be applied to the state-court judge who was the insurrectionist in that case.  The Supreme Court, by contrast, held that states could apply Section 3 to state-court officials, implying that Section 3 is self-executing as applied to state-court judges like the judge in Griffin’s Case.  The Supreme Court ruled in Trump’s favor on the ground that a state court could not disqualify a federal candidate under Section 3 because the Fourteenth Amendment didn’t “affirmatively delegate” the authority to do so.

This argument is difficult to swallow. The Federal Constitution is the law of the land.  It governs not only the federal government, but also the states.  States do not need permission to apply the law that binds them.

Indeed, the Supreme Court has frequently held that state courts must apply federal law, even if they don’t want to. The U.S. Reports are littered with reminders that “federal law is as much the law of the several States as are the laws passed by their legislatures” and “although States retain substantial leeway to establish the contours of their judicial systems, they lack authority to nullify a federal right or cause of action they believe is inconsistent with their local policies.” Here, we have the opposite scenario: rather than the Colorado Supreme Court refusing to apply federal law and the Supreme Court insisting it must, here the Colorado Supreme Court was actually trying to apply federal law, and the Supreme Court held that it wasn’t allowed to do so because the Fourteenth Amendment didn’t give it permission.  Huh?

The Supreme Court observed that “the substantive provisions of the [Fourteenth] Amendment ‘embody significant limitations on state authority.’” Hence, the Court thought, “[i]t would be incongruous to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal office.” But the Colorado Supreme Court’s decision to apply federal law to restrict its citizens’ choice of presidential candidates didn’t expand state power vis-a-vis the federal government.  While it seems likely that the Colorado Supreme Court Justices were subjectively pleased by this constraint purportedly imposed upon them by the Fourteenth Amendment, the fact remains that the Colorado Supreme Court held that a federal election was governed by a federal rule, subject to review by the U.S. Supreme Court.

The Supreme Court was uncomfortable that a state court would rule on the eligibility of a candidate for federal office.  But since the dawn of the Republic, states have run federal elections.  Under Article II, each State’s presidential electors are appointed “in such Manner as the Legislature thereof may direct.” Likewise, under Article I, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Given that states are constitutionally charged with running federal elections, it’s perfectly natural that state courts would discern whether candidates in those elections are eligible. 

The Supreme Court acknowledged that states run presidential elections under the Electors Clause, but declared that “there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates.”  I don’t get it.  There is no “implicit” power being claimed.  The state has the explicit power to run presidential elections.  That includes the power to ensure that the presidential election operates according to law.  Law includes federal law, including federal constitutional law.

Indeed, in Hassan v. Colorado, the Tenth Circuit, per then-Judge Gorsuch, held that Colorado was constitutionally entitled to exclude a foreign-born candidate from the presidential ballot. The court reasoned 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 excluding Mr. Hassan seemed appropriate because the question of Hassan’s eligibility was easy under Article II, but sometimes the Article II question will be harder—maybe there’s a factual dispute over whether the candidate was born in the United States, or a legal dispute over whether a candidate born in the Panama Canal Zone is a natural-born citizen, as occurred with John McCain.  Do state courts have the authority to decide easy eligibility questions but not hard ones?  Or is the theory that state courts have authority to decide eligibility questions under Articles I and II but not Section 3 of the Fourteenth Amendment?  Where do these distinctions come from?

The Supreme Court observed that under Section 3, Congress retains the ability to un-disqualify a candidate by a two-thirds majority.  It opined that Congress should be able to exercise this authority at any time before an election, and should not be “forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle.”  This is a version of Trump’s argument that the Colorado Supreme Court’s decision impermissibly added a “qualification” for the presidency in violation of U.S. Term Limits, Inc. v. Thornton, which I addressed here, although the Supreme Court couldn’t bring itself to endorse that argument full-throatedly. 

I’m not persuaded.  Section 3 says that an insurrectionist has a legal disability—inability to hold an office of the United States—that can be removed if Congress takes affirmative action.  This is the opposite of saying that the insurrectionist has a legal disability only if Congress takes affirmative action.  Also, Congress’s ability to alter an insurrectionist’s legal status says nothing about whether a state may take action in view of an insurrectionist’s current legal status. Should a state really be forced to deal with the inevitable voter confusion and strategic voting arising from a currently-ineligible candidate on a ballot merely based on the exceedingly unlikely prospect that two-thirds of both houses of Congress would restore Trump’s eligibility?

The Court also invoked history, claiming that although “States did disqualify persons from holding state offices following ratification of the Fourteenth Amendment,” there was no “tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Fourteenth Amendment.”  According to the Court, the “pattern of disqualification with respect to state, but not federal offices provides persuasive evidence of a general understanding that the States lacked enforcement power with respect to the latter.”

But there were way more state officers potentially subject to disqualification than federal officers, so of course one would see more examples of attempted disqualifications of state officers. And it was far easier procedurally for a state officer to be disqualified than a federal officer. A state court couldn’t realistically remove a sitting member of Congress from office, and there was no realistic way for private citizens to seek disqualification of candidates for federal office—ballot access litigation did not exist in the immediate wake of the Civil War, and the issue subsequently became moot when Congress broadly granted amnesty to all Civil War insurrectionists.  After that there was a long period without Section 3 litigation, but that’s not because there was some kind of understanding in the lawyer hive-mind that Section 3 isn’t a thing; it’s because we’ve been blessed by Presidents who haven’t tried to overturn elections.  Immediately after the events of January 6, 2021, lots of lawyers started arguing that Trump was disqualified under Section 3.  I just don’t think the long period without Section 3 litigation tells us anything other than that there’s been a long period without Section 3 litigation.

The Court expressed concern that “state enforcement might be argued to sweep more broadly than congressional enforcement could under our precedents. But the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible.” Well, maybe state enforcement might be argued to sweep more broadly than congressional enforcement. Good thing we have a U.S. Supreme Court to ensure that those arguments fail!

99.44% nerd

So … to return to where this discussion started … is Trump v. Anderson correct?

99% of the time I am on Team Nerd.  Judges are not politicians. It’s their job to follow the law where it leads.

But it’s artificial to suggest that “the law” excludes considerations of practical consequences, at least when those consequences are sufficiently severe. And if there’s ever been a time to be on Team Statesmanship, this is it. So I could be persuaded that this case is the 1%.

The best reason to be a doctrinal purist 100%, rather than 99%, of the time, is that diverging from doctrinal purity even once opens up a Pandora’s Box.  It sets the precedent that courts can use preferred outcomes to drive reasoning whenever they want.  And any time Supreme Court decisions appear to be rooted in pure logic, people will wonder whether the Court is following that logic only because it leads to the result the Court wanted anyway.

On the other hand, Marbury, the greatest decision in Supreme Court history, was statesmanlike.  So the Pandora’s Box has been open for 221 years and will never close. The Statesmanship Option will be with us forever, and that is probably for the best. Ultimately, we have to hope that the Supreme Court will exercise it wisely—and sparingly.