Blackcap Blog

Published at 16:54 on 1 February 2024

That is to say, how will the United States Supreme Court rule on whether or not the 14th Amendement bars Trump from running for president?

Anyone claiming that the Court’s conservatives “have to” rule against Trump because of the doctrine of originalism is a rank idiot who does not know even the most elementary basics about politics. Would it be hypocritical to suddenly forget about originalism the instant it becomes politically inconvenient? Of course it would! But so what?

To reiterate, anyone arguing that hypocrisy makes taking a position impossible is an idiot. Such an individual knows nothing about politics in general and right-wing politics in particular. If hypocrisy played no role in politics, politics would be so radically different as to be virtually incomprehensible.

The right-wing justices could rule in Trump’s favour with the greatest of ease, and without the slightest of hesitation, and the political right would loudly celebrate the ruling as a great blow for the cause of justice. Any attempts to point out the hypocrisy of it all would go exactly nowhere with the right. As Upton Sinclair once observed: “It is difficult to get a man to understand something, when his salary depends upon his not understanding it!”

The question is not whether they “have to” in the name of some imaginary principle against hypocrisy, but whether or not they will rule against Trump as a virtue of some other principle (which, given human nature, will most likely be one grounded in self-interest). And this is far more difficult to say.

On the one hand, ruling in Trump’s favour helps their political team win. And make no mistake: that would be the calculus behind the ruling. There would of course be a lot of verbiage about higher principles, but that would be a mere pretext cooked up to justify the desired action, nothing more.

If they do rule for Trump, a ruling based on the pretext of due process is most likely. That is, it will be argued that the 14th Amendment is co-equal with the 5th Amendment, and that as such the guarantees of due process in the latter still apply. Trump has not been found guilty of any seditious crimes, and therefore he will be ruled an eligible candidate.

On the other hand, Trump is acting more and more like an aspiring dictator, and dictators are never friendly to the idea of an independent judiciary. And here we have another team to consider: the judiciary in general. Government bureaucracies are many and varied, but they all have a common thread: they want to preserve themselves and their power. Those right-wing justices may be on the right, but they are also part of the judiciary branch, and want to see that branch continue to be powerful and relevant in national politics.

That this incentive exists, and could act to frustrate the evolution of tyranny, is no accident. From Federalist 51 (emphasis added):

It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

If the Court’s conservatives rule against Trump, this, not originalism, is likely to be the most powerful motivator. Oh, sure, originalism will dovetail nicely with such a ruling, and that will make the conservative justices ruling so pleased with it. I am sure they will wax eloquent about originalism in that ruling, and they will do this while remaining silent about sticking up for their own power. Professed motives should never be confused with actual ones.

So this, then, is the real question: how will the justices perceive the butter on their toast? If they perceive it to be buttered on the side of a second Trump presidency advancing their interests, they will rule for Trump. If they perceive the opposite, they will rule oppositely. And there is no easy way to say ahead of time which it will be.