You’d think that writing insistently about what the courts should or must do requires you to pay at least a little attention to what the law actually means.
One of the distinctive features of progressive commentary on the question of disqualifying Donald Trump under Section 3 of the 14th Amendment is the near-uniform refusal to actually grapple with the legal questions of what the language of Section 3 means, how it was understood and applied when it was ratified, and how it applies to the facts. So, for example, we get Adam Serwer of the Atlantic writing:
The Colorado Supreme Court has left the justices of the United States Supreme Court in the very uncomfortable position of having to prove that they have the courage of their stated convictions. . . . The Colorado court is calling the bluff of the U.S. Supreme Court’s originalists, forcing its conservative justices to choose between their purported legal philosophy and the partisan interests of the party with which they identify. The ruling itself seems written with a consciously originalist interpretation, with an eye toward legitimizing its conclusions to the justices who will ultimately be compelled to deal with the case.
What is that originalist case? Serwer doesn’t even bother to explain it to his readers. He just hand-waves in the direction of a law review article by right-leaning originalist academics William Baude and Michael Paulsen. But as I have detailed at length here and here, the originalist evidence from how Congress interpreted Section 3 at the time is at odds with reading its language to cover Trump’s conduct, and Baude and Paulsen don’t rebut that case. Instead, they basically bait and switch their argument: After 111 pages of essentially careful originalist analysis of issues regarding the coverage of Section 3 and the process used to enforce it, when they actually get to applying the rule to Trump, they make creative arguments untethered to the originalist source material. The Colorado court ignored the contemporaneous congressional evidence and ran ahead of what was said in the one item of originalist evidence it cited (the 1867 opinions of then-attorney general Henry Stanbery). If the original public meaning clearly supported disqualifying Trump, I’d be the first guy pounding the table to apply it and rid us of Trump once and for all (that’s why I wanted him convicted in the second impeachment trial), but it doesn’t. Then again, Serwer’s agenda here, like that of most of the progressive commentators, is to discredit originalism rather than to apply it, so of course he doesn’t care to do the work.
We see that repeatedly: progressives either completely skipping by the actual legal work or just treating Baude and Paulsen as conclusive. Brian Beutler asserts that “Disqualifying Trump From The Ballot Is Required,” but doesn’t say why. Greg Sargent (see here and here) just hides behind Baude and Paulsen and acts as if they don’t have any serious critics. Then there’s Dahlia Lithwick:
One of the most striking aspects of the Colorado Supreme Court’s ruling is how much of the 213-page opinion is devoted to institutional humility: Are the issues justiciable? Is this a political question better resolved by the political branches? Is it even appropriate for a court to resolve issues of such enormous national import? While the 4–3 majority of the Colorado court came down with a “yes” on each of these issues, you can’t say they didn’t take them seriously.
That’s true, but then she just skips entirely over the discussion of the merits. That’s true as well of people such as Jonathan Chait, who to his credit argues against the Colorado decision on the grounds of it being dangerous and destabilizing, but doesn’t get into the legal merits at all. To be fair, other than Lithwick, I don’t believe that any of these people are lawyers, but you’d think that writing insistently about what the courts should or must do requires you to pay at least a little attention to what the law actually means — especially if your argument is that the lawyers and judges who disagree with your reading of the law are betraying their own principles by doing the homework you didn’t bother to do.