The Supreme Court Sure Picked a Curious Moment to Embrace Humility

Chief Justice John Roberts smiling with the Supreme Court at his back.
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It is only going to be a little bit galling when the Supreme Court, in a unanimous or near-unanimous vote, determines in a few weeks that states may not disqualify insurrectionist presidents from the ballot, because doing so would unleash mayhem—or, as Donald Trump’s lawyer promises, “chaos and bedlam”—that the nation cannot afford. During oral arguments Thursday in Trump v. Anderson, the long-awaited ballot disqualification case, almost all the justices centered their worries less on text and history than on the chilling prospect of, as Chief Justice John Roberts put it, the “plain consequences” of greenlighting a regime in which “a goodly number of states will say, whoever the democratic candidate is, ‘you’re off the ballot.’ ” Roberts fretted that “it’ll come down to just a handful of states that are going to decide the presidential election,” as if rogue states were not currently dictating outcomes for the rest of the country already. “That,” he added “is a pretty daunting consequence.”

Call it judicial cowardice or call it long-lost judicial humility, but the consensus view among the justices was that a lack of uniformity, coherence, and certainty—as well the fear of vexatious acts and petty mischief— precluded the court from allowing the words of the 14th Amendment’s Section 3 to mean what they say. Historians have fallen over themselves to show that, yes, Section 3 bars insurrectionists from the White House, up to and including Trump. Yet the justices seemed terrified that disqualifying him from the ballot could unleash chaos in future elections.

Really? That’s the off-ramp? This Supreme Court has evinced not a scintilla of concern for the real impacts of its gun decisions, voting rights decisions, or abortion decisions on real people. The fact that the justices are suddenly profoundly worried about the consequences of this case serves as a reminder that when the real-world impacts might be experienced by the justices themselves, or when they are simply too unpredictable to contemplate, it’s time to take them very seriously. When it’s literal deaths—like victims of gun violence or abortion bans—or a massive aggrandizement of judicial power—like subjecting every federal regulation or gun law to close scrutiny—well, if history demands it, so be it. But when it’s the possibility of different names on different ballots, or the court having to adjudicate what is and isn’t an insurrection, good history is irrelevant, and the need for “uniformity” rules the day.

Start with the chief justice. It could make you cry, the absolute gall of Roberts to offer up a vociferous cheer for federal and congressional power in enforcing the 14th Amendment—after making it his life’s work to dismantle the Voting Rights Act in the name of states’ “dignity.” So could energetic efforts by other conservatives, most notably Justice Brett Kavanaugh, to frame a ruling for Trump as a victory for democracy. In considering the case, Kavanaugh asserted, the court “should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide.” Enforcing Section 3 against Trump, the justice cautioned, “has the effect of disenfranchising voters to a significant degree.” Who would have thought that Kavanaugh, who spent the run-up to the 2020 election upholding voter suppression laws, would emerge as a great defender of judicial deference to democracy? Or is “democracy” only imperiled when a state is threatening to take Trump off the ballot?

This opportunistic humility reared its head again as the justices dodged and weaved their way around a fundamental factual question: Did Trump engage in insurrection on Jan. 6 of 2021? The only admission that Jan. 6 was in fact a “riot,” a “shameful, criminal, violent” event came from Jonathan Mitchell, Trump’s own lawyer. Otherwise, the justices conspicuously avoided discussing the attack itself, burying it under questions about standards of proof, hearsay, and whether they should be forced to watch videos from the ellipse to understand what happened that day. Justices Amy Coney Barrett and Samuel Alito were especially doubtful of the factual record compiled by the Colorado trial court. How, they asked skeptically, can we trust state courts to gather facts and adjudicate the meaning of an insurrection? Isn’t that just too tall a task for lowly state judges? The singular horror of Jan. 6 appeared to be a reason for the court not to intervene judicially, as opposed to the reason that it should.

Or perhaps the justices danced around the subject of insurrection because Justice Clarence Thomas was participating in arguments even though his wife, Ginni, attended the rally that at best precipitated, and at minimum devolved into, the Capitol attack. Ginni Thomas was even interviewed by the Jan. 6 committee due to her involvement in the events of the day. Yet there was Thomas on Thursday, asking the first question. If the court is truly incapable of seeing how Thomas’ participation Thursday morning hopelessly taints his, and also their own, participation in this case, we shouldn’t be surprised that it also declines to decide (and also declines to defer to what a lower court decides) with respect to what an “insurrection” means.

This is, please recall, a court that decides what should constitute clean water, vaccine policy, immigration rules, university admission policies, and every other major and minor question under the sun. It decides when states have dignity and when Congress may take that dignity away. It decides when a single court sets national policy—chaos be damned—and when uniformity matters more than a trial court’s findings of fact. If, after Thursday, the high court sees fit to rediscover judicial and institutional humility, maybe we should all welcome the development. As we argued earlier this week, the obvious next step will be to evince that same institutional humility with a summary affirmance of the U.S. Court of Appeals for the D.C. Circuit’s decision denying Donald Trump blanket immunity for the events of Jan. 6. Absent a similarly humble ruling in that case, the liberals’ collegiality over Trump’s ballot access, their willingness to join with conservatives to strike a posture of humility, will have been pointless at best and disastrous at worst.

Throughout arguments in Anderson, the justices purported to be experts at staying in their lane and avoiding interference with the political process. The immunity case puts that pose to the test. If the court lets the D.C. Circuit decision stand—allowing Trump’s trial to move forward before November—it can claim at least a little credit for staying out of the 2024 election. Democracy, whatever that even means anymore, can have the last word. But if the court drags out the immunity case, delaying Trump’s trial beyond November, and bars states from taking him off the ballot? Well, then we’ll know where the court really stands on self-governance, humility, and all the values it suddenly rediscovered when Trump’s fate landed in its hands.