I’ve written a couple of short pieces about the move to invoke Section 3 of the 14th Amendment to block Donald Trump from the ballot. The gist of those two swipes was this: That while electing Donald Trump to a second term of office would be catastrophic, removing him from the ballot based on a forgotten snippet of the 14th Amendment would be catastrophic as well.
**
But as I’ve long argued — and argued at length in my book, Fidelity and Constraint (Oxford 2019)—the story of our Court has never been one of fidelity to meaning alone. Always, and from the Left and Right, there has been a focus on fidelity to role as well. Indeed, from the very beginning, the Court has understood the Constitution’s meaning — for it, at least—as a function of its own role. Or put differently, the institutional capacity of the Court has constrained the range of permissible meanings of the Constitution, at least as they are available to the Court.
****
For these reasons, I remained convinced that though Donald Trump should not be elected President, neither should the Supreme Court affirm an order that he be removed from the ballot.
But whether you agree with that conclusion or not, please agree with at least this one: Whatever the Supreme Court does, if it is to preserve itself as an institution of justice, it needs to act unanimously. If it removes Trump 9–0, that would be a profound act, and done in a way to remove the suggestion that it is political. And if it reverses Colorado and declares Trump cannot be excluded from the ballot, that decision, too, should be 9–0. This is not the time for the egos of individual justices to muddy the perception of the Court’s decision. However the Court acts, it will be among the most important decisions it will have ever made. It needs to make that decision as one Court, whatever the individual views of individual justices might be.
No comments:
Post a Comment