by Elena Kagan once jokingly referred to Jonathan Mitchell as “some genius”. That was in the oral arguments surrounding SB8, the bounty hunter abortion ban that Texas passed before the overturn of Roe v Wade, Mitchell wrote, pioneered a cockamamie scheme to avoid judicial review.
Mitchell, a far-right lawyer currently seeking a place in the second Trump administration, is a fan of this kind of blunt, legalistic mindset: you can’t say he’s duplicitous, because he doesn’t pretend to be the law in fact as a result. with the conclusions he wants to reach. It is more about devising novel legal schemes to achieve his desired result and trusting that the federal judges, captured as he is by the acolytes of the Fed and the wingnut hips, will go along with him because they share his political leanings.
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That’s what worked for him with SB8: the supreme court allowed the Texas abortion ban to go into effect long before Dobbs: not because Mitchell made a convincing argument, but because he offered them an opportunity to do what they wanted on anyway.
A similar thing happened in Thursday’s oral arguments in Trump v Anderson, a question of whether Donald Trump is disqualified from holding federal office under section three of the 14th amendment.
The case reached the supreme court after a Colorado court ruled that Trump’s actions on Jan. 6 disqualified him. The court wanted to disagree and was desperate to find a way to return Trump to the Colorado ballot without addressing the basic question of whether or not Trump had rebelled. Mitchell, Trump’s lawyer, gave them little help: he gave a shoulder-push argument to the justices, after filing a strange and pressured brief that focused mostly on the absurd claim that the president is not an “official.” Left to their own devices, the justices went fishing, looking for an argument that could let them out of the case, since Mitchell didn’t provide them with one.
The winning entry came from Justice Samuel Alito, who first offered the proposition that a state like Colorado did not have the authority to enforce section three of the 14th amendment without congressional approval. The rest of the justices seemed to like the sound of that and soon they were all asking questions about the scope of state authority over the administration of federal elections.
It was an odd argument: the court recently came close to adopting a far more expansive vision of state legislatures’ authority to control federal elections within their borders, addressing a rightwing legal curiosity called the “independent state. theory of the legislature”. And the notion that section three of the 14th amendment requires effecting congressional action stands for itself: no other section of the amendment has been found that requires such initiated legislation from Congress, and the language of the amendment itself suggests know that Congress must act to disqualify rebellion but not start it.
It is strange, too, that the court, which has made great and destructive changes in American life in recent years, out of its loyalty to the “history and traditions” of our nation, has chosen to completely ignore the recommendations of history here. Section three of the 14th amendment has rarely been invoked – in part because of the rarity of rebellions – and thus the self-directed founders of the court are little constrained from grappling with the history of the amendment’s intent and context.
But instead the justices chose to dismiss the considerable evidence that the framers intended to use section three of the 14th amendment precisely to protect the republic from a figure like Trump. They serve themselves instead not on the lessons of the past, but on the incentives of today.
Democracy means more than the simple ability to vote; it requires commitment to constitutional principles
By the end of the arguments, it was clear: what the justices will write is a 9-0 or 8-1 decision (only Sonia Sotomayor expressed many dissents) saying that article three is not self-enacting, or at any rate that is. the states cannot enact it themselves. They will have come to this conclusion not because the attorney Trump Mitchell made the argument persuasively or at all – he didn’t – and not because it’s where the text forces them to come – it’s not. Instead, they will have made this reasoning out of whole cloth, because it leads them to an irresistible question: the question of whether the substantive protections of the Constitution for democracy can withstand the stress that Trump puts on them.
One point touched upon by many of the justices, and embraced by those skeptical of the Colorado case and similar attempts to disqualify Trump from office on 14th amendment grounds, is the view that his disqualification would be anti- democratic, somehow disqualified. the people who would like to vote for him and would not get a chance.
But democracy means more than the simple ability to vote; it requires a commitment to constitutional principles – to office limits, minority rights, the separation of private and public interests between those in power and a willingness to put the dignity of the country before Irish minorities. the man who directs it.
Trump has no intention of upholding these principles. We know: he tells us all the time. To disqualify him would not undermine democracy but to protect it, by avoiding the seizure of the republic by the man who was quite honest about his intention to destroy it.
Meanwhile, it appears that section three of the 14th amendment is now orphaned – denied its self-efficacy status, and enforced by the states. If section three is still the law, and if there is still a prohibition against accepting a resignation from federal office, how can this law be enforced? And that’s where the court seems to have planted a loaded gun in its apparent attempt not to take much of a position on the issue. Because if states can’t enforce the ban on rebellion in office, only Congress can. And where would Congress do that? Confirming the election votes – on 6 January 2025.
