How SCOTUS election ruling exposes 'originalism' as the 'fraud it actually is': analysis

05 March 2024

When the U.S. Supreme Court handed down its Trump v. Anderson ruling on Monday, March 4, all nine of the justices agreed that the Colorado Supreme Court was wrong to exclude 2024 GOP presidential frontrunner Donald Trump from the state's ballot based on Section 3 of the U.S. Constitution's 14th Amendment.

The High Court's decision not only strikes down the Colorado ruling; by extension, it also strikes down similar Section 3-based decisions in Maine and Illinois. But not all of the justices were on the same page about everything in Trump v. Anderson.

Five justices appointed by GOP presidents — Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Chief Justice John Roberts — went a step further and said that a federal "officer" cannot be removed from a state ballot unless Congress has passed legislation. Three Democratic appointees (Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson) and far-right Trump appointee Amy Coney Barrett didn't agree, writing their own opinions.

In a biting article published on March 4, The Atlantic's Adam Serwer is vehemently critical of the five justices' lead opinion in Trump v. Anderson — which, he argues, exposes "originalism" as a sham.

"The justices argued that allowing state enforcement would lead to anarchy that could 'dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times,'" Serwer explains. "Referring to the potential problems that could be caused by individual state enforcement of the prohibition, the justices write that 'nothing in the Constitution requires that we endure such chaos — arriving at any time or different times, up to and perhaps beyond the Inauguration.'"

Serwer continues, "Not that this should have mattered to the Court's originalists, whose commitment to that doctrine supposedly prevents them from deciding cases on the basis of their personal preferences rather than the law itself…. Every one of them decided, as transparently as possible in this case, that the text of the Constitution would have forced them to do something they did not want to do or did not think was a good idea, and so, they would not do it. The justices did not want to throw Trump off the ballot, and so they didn't. Not only that, but in order to head off the unlikely scenario of Congress trying to disqualify Trump after the election, they said that Congress must specifically disqualify individual insurrectionists, despite such a requirement having no basis in the text."

The Atlantic writer argues that Alito and Gorsuch are happy to toss "originalism" or "textualism" aside when it is convenient.

"This case reveals originalism as practiced by the justices for the fraud it actually is: a framework for justifying the results that the jurists handpicked by the conservative legal movement wish to reach," Serwer stresses. "Americans should keep that in mind the next time the justices invoke originalism to impose their austere, selective vision of liberty on a public they insist must remain gratefully silent."

Read Adam Serwer's full article for The Atlantic at this link (subscription required).

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