The election-law experts Edward Foley, Benjamin Ginsberg, and Richard Hasen warned, in an amicus brief, that if the Justices resolve the case without “deciding the merits of the disqualification question,” it “would not reflect an admirable judicial modesty; it would instead mark a dangerous refusal by this Court to do its duty.” To actually decide the disqualification question in a way that could prevent what those experts said would be comparable to the Civil War, it would not be enough for the Court to say merely that Trump can run for office, leaving the question of whether he is disqualified as an insurrectionist for Congress to determine. Instead, the Court would have to decide that he is not disqualified from holding office—in other words, qualified under Section 3—either because he is not an insurrectionist, or because the provision doesn’t apply to him, regardless of whether he is an insurrectionist. In that event, neither the states nor Congress would have the opportunity to declare him constitutionally disqualified, or to fight about it.
If the Court takes the question of Trump’s disqualification entirely out of the hands of states and of Congress, it would make itself the sole decider of the matter. Such a decision, fuelled by the imperative to avert something like a civil war, would invite comparison to the Court’s situation in Dred Scott, in which the Court infamously thought it could prevent war by resolving the moral question of slavery and ended up hastening it. The comparison is unpromising. It was evident that the Justices have no appetite for resolving the question that motivated this case to begin with: whether Trump engaged in insurrection. It appears likely that the case will be resolved without addressing it at all. But if the Court is going to find in favor of Trump in this case, as it appears it will, the broader imperative of Presidential accountability in a constitutional democracy might be best served, not by holding that Section 3 doesn’t apply to a President or the Presidency, but by finding that Trump did not engage in insurrection. As Mitchell put it at the Court on Thursday, “This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things, but it did not qualify as insurrection.” Though it might hurt to say so, greater dangers would be unleashed on the country by the contrary conclusion.