The strongest argument for throwing Trump off the ballot is the weakness of the counterarguments.
When I review divided appellate-court decisions, I almost always read the dissenting opinions first. The habit formed back when I was a young law student and lawyer—and Federalist Society member—in the late 1980s, when I would pore (and, I confess, usually coo) over Justice Antonin Scalia’s latest dissents.
I came to adopt the practice not just for newsworthy rulings that I disagreed with, but for decisions I agreed with, including even obscure cases in the areas of business law I practiced. Dissents are generally shorter, and almost always more fun to read, than majority opinions; judges usually feel freer to express themselves when writing separately. But dissents are also intellectually useful: If there’s a weakness in the majority’s argument, an able judge will expose it, sometimes brutally, and she may make you change your mind, or at least be less dismissive of her position, even when you disagree. Give me a pile of Justice Elena Kagan’s dissents to read anytime—I love them even when she’s wrong, as I think she often is. You can learn a lot from dissents.
Last night, I reviewed the three separate dissents in Anderson v. Griswold, the landmark 4–3 Colorado Supreme Court case holding that Section 3 of the Fourteenth Amendment prohibits Donald Trump from ever serving again as president of the United States. I had been skeptical of the argument, but not for any concrete legal reason. To the contrary, I believed the masterful article written by the law professors (and Federalist Society members) William Baude and Michael Stokes Paulsen had put the argument into play. And I had read (not to mention heard, at length, on the phone) and took quite seriously what my friends Judge J. Michael Luttig and Professor Laurence H. Tribe had to say about it here in The Atlantic—that the Fourteenth Amendment clearly commands, in plain language, that Trump never hold federal office again.
Their points were strong. But much as I never want to see Trump near the White House again, I wasn’t quite buying them. The argument seemed somehow too good to be true. And frankly, from a political standpoint, it would be better for the country if Trump were thrashed at the polls, as I think he ultimately would be. There had to be a wrinkle. I just knew it.
But last night changed my mind. Not because of anything the Colorado Supreme Court majority said. The three dissents were what convinced me the majority was right.
The dissents were gobsmacking—for their weakness. They did not want for legal craftsmanship, but they did lack any semblance of a convincing argument.
