In Print: Sweeping Section Three Under the Rug
Just in time for the inauguration today of Donald J. Trump, my second article with Michael Stokes Paulsen is now published in final form in the Harvard Law Review — Sweeping Section Three Under the Rug: A Comment on Trump v. Anderson.
From the introduction:
“Great cases,” the saying goes, “like hard cases make bad law.” The aphorism, from Justice Holmes’s dissent in the Northern Securities case, came with an explanation:
Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.
Like so many of Justice Holmes’s maxims, this one does not always hold true. Some of the Supreme Court’s great successes in constitutional law have also been “great cases” in the Holmesian sense: They concerned an incident “of immediate overwhelming interest” and potentially serious consequence to the life of the nation and were decided under intense public scrutiny and often urgency — and yet they were decided well and soundly. Urgency, high consequence, and public attention at least sometimes combine to concentrate the judicial mind powerfully, to good and memorable effect.
We think of Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) as such a case — perhaps the leading example of exemplary judicial performance under severe time and political pressure, where the stakes were high. Youngstown raced through the judicial process, bottom to top, at breakneck speed, less than eight weeks’ time elapsing from President Truman’s executive order seizing the nation’s steel mills in April 1952 to the Supreme Court’s 6–3 decision on June 2 invalidating that order. The Court rose to the occasion magnificently, producing some of the most important, powerfully reasoned judicial opinions concerning fundamental questions of separation of powers in its history.
New York Times Co. v. United States9 (The Pentagon Papers Case) is another “great case” that seems to defy Justice Holmes’s axiom, a prominent First Amendment landmark concerning freedom of the press from prior restraint, decided by the Court on an extraordinarily compressed time schedule that made Youngstown look positively leisurely: Two federal appellate courts ruled, differently, on the same day, June 23, 1971, on whether the federal government could obtain an injunction against two newspapers’ publishing of classified information. Motions for interim relief and expedited consideration were filed in the Supreme Court the next day, June 24. The Court ordered briefs submitted by June 26, held oral arguments that same day, and issued its judgment and opinions on June 30 — just one week after the lower courts had ruled. Again, the Court rose to the occasion. While there was no single rationale for the judgment — in that sense, the Court did not “make . . . law” at all — the individual opinions of all nine of the Justices combined to form an important 6–3 ruling against the government and for freedom of the press. . .
Some great cases have produced very good judicial decisions. But at least some support Justice Holmes’s claim: Sometimes the magnitude of the stakes; the “immediate overwhelming interest” in the outcome; partisan passions; and a sense of urgency compressing the time for analysis and judgment all come together to irretrievably skew the performance of judicial duty. Sometimes great cases overwhelm judges’ capacity to engage in careful and principled legal reasoning.
Trump v. Anderson was such a case.
It was a great and momentous case by any measure. It presented the hugely important constitutional question whether a former President of the United States is constitutionally disqualified from holding that office again — or any significant office — by Section Three of the Fourteenth Amendment. Specifically, it posed the explosive question whether the 45th President of the United States, having sworn an oath to support the Constitution as President, had subsequently “engaged in” conduct constituting “insurrection or rebellion” against the U.S. constitutional or
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