Everyone Drop What You're Doing and Acknowledge How Right I Was About the Trump 14th Amendment Case

Set phasers to "gloat"!

Above: A stock photo of the Supreme Court building from kicknpray, because I don’t know what other photo to pair with these columns about SC rulings.

If I had been wrong about the Trump 14th Amendment thing, this article wouldn’t exist. I would have written about something else, and I might have even harumphed about how we should focus on real issues instead of getting mired in the scummy provincialism of American politics. But since I predicted this outcome bang on the nose: Let’s get all up in that scummy provincialism. Let’s dive in, rut around for a bit, take a break to watch a Seinfeld rerun, and then dive in some more.

When I broke down the 14th Amendment case against Trump in December, here’s what I wrote:

A cynic would argue that the legal points in this case are so fine, and the consequences of striking Trump from the ballot would be so severe, that the Supreme Court will find some escape hatch (probably Section 5) to squeeze through and keep Trump on the ballot. And allow me to be that cynic: I think that’s what they’ll do.

Today, the Supreme Court shimmied their 18 buttcheeks through that escape hatch. The conservative justices cited Section 5, while the liberal justices found their own loophole (which I’ll talk about in a bit). In the first unanimous Supreme Court ruling since Og v. Mastodon in 10,000 B.C., all nine justices found a way to sidestep the monumental-if-possibly-legally-required step of allowing states to strike Trump from the ballot.

And now: memes.

This outcome was foreseeable because the Court was painted into a corner. Letting states throw Trump off the ballot would sow chaos and let state officials veto voters’ choices. Even many people like me — who wouldn’t vote for Trump for all the weed in Amsterdam — didn’t want him to be disqualified. But a reasonable reading of the 14th Amendment might allow states to void his candidacy. Before I dug into the details of this case, I figured it would be loony partisan horseshit, like when libertarians say that the Constitution says that a cop has to give you his gun if you ask for it. But I think the case is actually kinda good. And that’s why the justices had to stretch to avoid an outcome that no one to the right of Keith Olbermann really wanted.

Five of the six conservative justices hopped into the Section 5 Escape Pod. Section 5 of the 14th Amendment gives Congress the power to enforce the 14th Amendment. But does that mean that Congress can enforce the amendment if they feel like it, or that the articles’ provisions are dormant until Congress acts? Five justices ruled that it’s the latter. That allowed the conservatives to get the outcome they wanted while staying within the text, which is important, because conservatives like to avoid stoned-college-freshman esoterism that amounts to “what does the word ‘the’ really mean?”

Of course, they may have created a new problem. By declaring part of the 14th Amendment not “self-executing”, it raises the question of whether any of the 14th Amendment is self-executing. Some legal analysts have noted that the conservatives basically reversed their position from the 2013 Shelby v. Holder case, in which they moved the power to enforce the 14th Amendment away from the federal government and towards the states. So now the law — as I understand it — is that the 14th Amendment is operative, except for the parts that aren’t, and only Congress can enforce it, except that if they do try to enforce it, they can’t. Good stuff.

The liberals — sort of joined by Amy Coney Barrett — invoked what I previously called the “pain in the ass principle”. Their main observation is that it would be weird for the authors of the 14th Amendment to craft a law that strengthened federal power, but include a quirk that lets states undercut federal elections. You can understand their logic: We know that the 14th Amendment’s authors were worried about ex-Confederates returning to government to sow chaos. Would they invite chaos by allowing state officials to say “actually YOU did the insurrection and Ulysses S. Grant can’t run for president!” That seems nuts. So Coney & The Libs engineered sanity by basically saying “that can’t possibly be right”.

But — serious question here — why isn’t “yeah they were dumb and fucked up” in play? Isn’t it possible that lawmakers wrote an illogical, contradictory law? Isn’t “they were dumb and fucked up” Occam’s razor for all human actions? And isn’t that doubly true when applied to Congress? I can point to two other places in the Amendment where the authors fucked up: 1) They failed to include president in their list of offices of the United States, and 2) They made the enforcement language in Article 5 too vague. So, they were fallible. The justices are basically playing the “I’m sure what you meant to say…” game like I did when my grandpa called a waitress with a leg brace “that crippled broad”.

All of this was foreseeable by anyone who accepts one simple principle: That the idea that judges are law-interpreting robots who operate outside of the political realm is utter fucking hogwash. In truth, they’re people, and their opinions and concerns seep into their rulings. I won’t go so far as to say that the law doesn’t matter at all, but if there were such a thing as an objectively correct interpretation of the law, then we wouldn’t need judges in the first place. It’s philosophically tidy to imagine that we’re governed by ink-on-paper laws that apply equally in all cases, but I think the reality is that we’re governed largely by custom.

Maybe I should have called this blog “I Might Be Wrong and You’d Better Hope So Because If I’m Right There Will Be No Living With Me”. Pity my wife, and even my one year-old son, who doesn’t really talk yet but can understand self-satisfied gloating when it’s laid on this thick. I’m sure that other people predicted this outcome, because I’m far from the only person who’s noticed that the concept of complete judicial objectivity is laughable. But at a minimum, no-one was more right than me, and that’s enough to make me insufferable.

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