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      Read Trump’s Appeal to the Supreme Court Over Colorado’s Ballot Ruling

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      ator John McCain, and Senator Ted Cruz held that the issue was for Congress and not the federal courts.

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      It would be beyond absurd-particularly in light of the Fourteenth Amendment’s enlargement of federal authority that this issue would be nonjusticiable by

      32. See, e.g., Castro v. N.H. Sec’y of State, Case No. 23-cv-416-JL, 2023 WL 7110390, at *9 (D.N.H. Oct. 27, 2023) (footnote omitted) aff’d on other grounds – F.4th —-, 2023 WL 8078010 (1st Cir. Nov. 21, 2023) (“[T]he vast weight of authority has held that the Constitution commits to Congress and the electors the responsibility of determining matters of presidential candidates’ qualifications.”); Robinson v. Bowen, 567 F. Supp. 2d 1144, 1147 (N.D. Cal. 2008) (“Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates.”); Grinols v. Electoral College, No. 2:12-cv-02997-MCE-DAD, 2013 WL 2294885, at *5-7 (E.D. Cal. May 23, 2013) (“[T]he Constitution assigns to Congress, and not to federal courts, the responsibility of determining whether a person is qualified to serve as President of the United States.”); Grinols v. Electoral Coll., No. 12-CV-02997-MCE-DAD, 2013 WL 211135, at *4 (E.D. Cal. Jan. 16, 2013) (“These various articles and amendments of the Constitution make it clear that the Constitution assigns to Congress, and not the Courts, the responsibility of determining whether a person is qualified to serve as President.”); Taitz v. Democrat Party of Mississippi, No. 3:12-CV-280-HTW-LRA, 2015 WL 11017373, at *12–16 (S.D. Miss. Mar. 31, 2015) (“[T]hese matters are entrusted to the care of the United States Congress, not this court.”); Kerchner v. Obama, 669 F. Supp. 2d 477, 483 n.5 (D.N.J. 2009) (“The Constitution commits the selection of the President to the Electoral College in Article II, Section 1, as amended by the Twelfth Amendment and the Twentieth Amendment, Section 3,” and “[n]one of these provisions evince an intention for judicial reviewability of these political choices.”). More

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      The 14th Amendment Disqualification Was Not Meant for Trump

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      Challenges to disqualify Donald Trump from the office of president under Section 3 of the 14th Amendment are popping up all over the country. On Thursday, the secretary of state of Maine ruled that Mr. Trump would be ineligible for the state’s primary ballot, a decision that can be appealed to the state’s Supreme Court. On Wednesday, the Michigan Supreme Court ruled narrowly that the state will allow Mr. Trump to stay on the primary ballot — but left open a potential future challenge to his inclusion on a general-election ballot.But so far only one — the Colorado Supreme Court’s ruling that bars Mr. Trump from the primary ballot — has reached the doorstep of the U.S. Supreme Court.The Supreme Court should take the case and reverse the Colorado Supreme Court ruling, and do so for the very reason cited by the Colorado judges. According to the Colorado court (itself quoting an earlier, unrelated case), Section 3 should be interpreted “in light of the objective sought to be achieved and the mischief to be avoided.”That is exactly right. The Colorado court failed, however, to follow its own advice.When Congress passed the 14th Amendment, there wasn’t a person in the Senate or House who worried about loyal Americans electing a former rebel like Jefferson Davis as president. Instead, Republicans feared that the leaders of the late rebellion would use their local popularity to disrupt Republican Reconstruction policy in Congress or in the states. Section 3 expressly addressed these concerns and did so without denying loyal Americans their right to choose a president.To date, much of the debate over Section 3 has focused on whether the president is an “officer” who takes an “oath.” This is an issue in the second part of the provision. What neither scholars nor courts have yet focused on is first part of Section 3. The threshold issue is whether the framers and ratifiers thought that the president holds a “civil” office “under the United States.” This is a much more specific and historically difficult question.Here are the key opening words of Section 3: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State …”The text begins by expressly naming offices that rebel leaders might conceivably secure for themselves on the basis of their local popularity. The greatest fear was that these rebels would return to Congress and join Northern Democrats in thwarting Republican Reconstruction policy.As Representative Thaddeus Stevens warned his colleagues, without a properly worded Section 3, “that side of the House will be filled with yelling secessionists and hissing copperheads” — a reference to Northern Democrats who had opposed the Civil War. It was possible that a coalition of Southern and Northern Democratic presidential electors would nominate a “hissing copperhead.”Congressional Republicans were so concerned about mischief in the Electoral College that they delayed the passage of the 14th Amendment in order to make sure the issue was properly addressed. The Joint Committee’s draft of Section 3 prohibited rebels from voting for presidential electors, but this left open an enormous loophole. As Representative John Longyear pointed out, this prohibition would be “easily evaded by appointing electors of President and Vice President through their legislatures.”Senator Jacob Howard agreed that Section 3 would not “prevent state legislatures from choosing rebels as presidential electors,” and he led the effort to rewrite Section 3 in a manner that closed the loophole. The result is the final version that prohibits leading rebels from serving as presidential electors, whether elected or appointed.The only reason to secure a trustworthy Electoral College is in order to secure a trustworthy president. So Section 3 focuses on state-level decision making. It expressly addresses three key positions where leading rebels might use their remaining popularity to disrupt Republican Reconstruction: the Senate, the House of Representatives and state-selected presidential electors.Radical Republicans like Thaddeus Stevens would have gone further and completely disenfranchised anyone who had participated in the rebellion, leader or not. Moderate Republicans, however, were more optimistic. As Senator Daniel Clark noted, once leading rebels were removed, “those who have moved in humble spheres [would] return to their loyalty and to the Government.”The strategy worked. In 1868, despite the scattered participation of former rebel soldiers as presidential electors, Southern Black voters helped elect the Republican Ulysses S. Grant over the Democrat Horatio Seymour.It is possible to read Section 3 as impliedly including the office of president as one of the “civil” offices “under the United States” covered by the general catchall provision. It would be odd to stuff the highest office in the land into a general provision that included everything from postmasters to toll takers, but the text is ambiguous enough to make this a possible reading.However, if the framers meant the catchall provision to include both presidents and postmasters, they were remarkably negligent. According to longstanding congressional precedent and legal authority, the phrase “civil office under the United States” did not include the office of president of the United States. As Joseph Story explained in his influential “Commentaries on the Constitution of the United States,” the congressional precedent known as “Blount’s Case” established that the offices of president, senator and representative were not civil offices under the government of the United States — they were the government of the United States. The phrase “civil office under the United States” referred to appointed offices.In addition to legal authority, there is also common sense to guide us. The text of Section 3 is structured in a manner that moves from high federal office to low state office, and the apex federal political offices are expressly named. As the former Attorney General Reverdy Johnson explained, “the specific exclusion in the case of Senators and Representatives” led him to initially presume that the framers excluded the office of president. Johnson accepted a colleague’s suggestion to the contrary, but if the text created such a presumption in the mind of a former attorney general, it is reasonable to think it may have created the same presumption in the minds of ratifiers.Actually, we have no idea whether the ratifiers shared Johnson’s initial presumption. This is because no one has discovered a single example of any ratifier discussing whether Section 3 included the office of president of the United States. Despite extraordinary efforts by researchers, no one has yet found evidence that any ratifier even considered the possibility that Section 3 abridged the people’s right to choose their president.The silence of the ratifiers on this point is important. Those favoring the disqualification of Mr. Trump insist that there is nothing “anti-democratic” about constraining the presidential choices of the national electorate. The Constitution, after all, contains a number of provisions that deny the people the right to elect whomever they wish. Article II, Section One, for example, prevents the people from electing anyone who is under age 35 or who is a foreign-born candidate.Those qualifications are expressly declared in the text and they received robust vetting and debate in the ratifying conventions. In the case of Section 3, the Supreme Court is being asked to impose new constraints on the democratic process by way of textual implication and in the absence of any public debate whatsoever.Such a reading is neither democratically appropriate nor textually necessary. And it was most certainly not “the objective sought to be achieved [or] the mischief to be avoided” by Section 3.At best, the text of Section 3 is ambiguous regarding the office of president. The Supreme Court should limit the clause to its historically verifiable meaning and scope.Let the people make their own decision about Donald Trump.Kurt Lash, a professor at the University of Richmond School of Law, is the author of, most recently, “The Reconstruction Amendments: Essential Documents” and the forthcoming “A Troubled Birth of Freedom: The Struggle to Amend the Constitution in the Aftermath of the Civil War.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Instagram, TikTok, X and Threads. More

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      Maine Bars Trump From 2024 Primary Ballot, Joining Colorado

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      In a written decision, Maine’s secretary of state said that Donald J. Trump did not qualify for the ballot because of his role in the Jan. 6, 2021, attack on the U.S. Capitol.Maine’s top election official on Thursday barred Donald J. Trump from the state’s primary election ballot, the second state to block the former president’s bid for re-election based on claims that his efforts to remain in power after the 2020 election rendered him ineligible.In a written decision, the official, Secretary of State Shenna Bellows, said that Mr. Trump did not qualify for the ballot because of his role in the Jan. 6 attack on the U.S. Capitol, agreeing with a handful of citizens who claimed that he had incited an insurrection and was thus barred from seeking the presidency again under the 14th Amendment of the Constitution.“I am mindful that no secretary of state has ever deprived a presidential candidate of ballot access based on Section 3 of the 14th Amendment. I am also mindful, however, that no presidential candidate has ever before engaged in insurrection.,” Ms. Bellows, a Democrat, wrote.Last week, Colorado’s Supreme Court ruled in a 4 to 3 decision that the former president should not be allowed to appear on that state’s Republican primary ballot.The decision in Maine underscores the ongoing tensions in the United States over democracy, ballot access and the rule of law. It also adds urgency to calls for the U.S. Supreme Court to insert itself into the politically explosive dispute over his eligibility.Just weeks before the first votes in the 2024 election are set to be cast, lawyers on both sides are asking the nation’s top court to provide guidance on an obscure constitutional amendment enacted after the Civil War, which is at the heart of the effort to block Mr. Trump from making a third White House run.Courts in two other states, Minnesota and Michigan, have ruled that election officials cannot prevent the Republican Party from including Mr. Trump on their primary ballots.Michigan’s Supreme Court concluded on Wednesday that an appeals court had properly decided that political parties should be able to determine which candidates are eligible to run for president.Another court decision is expected in Oregon, where the same group that filed the Michigan lawsuit is also seeking to have the courts remove Mr. Trump from the ballot there, though Oregon’s secretary of state declined to remove him in response to an earlier challenge.And in California, the state’s top election official was expected to announce whether Mr. Trump would remain among the candidates certified for the March 5 primary.Secretary of State Shirley Weber, a Democrat, faced a Thursday deadline to certify the list of official candidates so that local election officials could begin preparing ballots for the upcoming election. She has indicated in recent days that she is inclined to keep Mr. Trump on the ballot, despite a request from the lieutenant governor to explore ways to remove him.The legal cases are based on a Reconstruction Era constitutional amendment that was intended to bar Confederate officials from serving in the U.S. government. The provision, Section 3 of the 14th Amendment, disqualifies people who “engaged in insurrection or rebellion” from holding office.Over the years, the courts and Congress have done little to clarify how that criterion can be met. As the legal challenges mount, election officials and judges across the country find themselves in largely uncharted waters as they wait for the Supreme Court to provide guidance.The case would be the most politically momentous matter before the Supreme Court since it settled the disputed 2000 election in favor of President George W. Bush. Since then, the court has become far more conservative, in large part as a result of the three justices whom Mr. Trump appointed as president.Mr. Trump and his lawyers have called the efforts to bar him from ballots an underhanded tactic by Democrats who fear facing him at the polls.Steven Cheung, a spokesman for the Trump campaign, assailed Maine’s secretary of state as “a virulent leftist and hyperpartisan Biden-supporting Democrat.” In a statement, he added: “Make no mistake, these partisan election interference efforts are a hostile assault on American democracy.”Groups leading the disqualification efforts contend that the former president’s attempts to subvert the will of voters in 2020 warrant extraordinary measures to protect American democracy.Ms. Bellows, the official in Maine charged with considering the petition in that state, is the state’s first female secretary of state and a former state senator. She is also the former executive director of the nonprofit Holocaust and Human Rights Center of Maine and of the American Civil Liberties Union of Maine.In her 34-page decision, Ms. Bellows wrote that Mr. Trump’s petition to appear on the Maine ballot was invalid because he falsely declared on his candidate consent form that he was qualified to hold the office of president. She found that he was not, she wrote, because “the record establishes that Mr. Trump, over the course of several months and culminating on Jan. 6, 2021, used a false narrative of election fraud to inflame his supporters and direct them” to prevent the peaceful transfer of power.She also concluded that Mr. Trump “was aware of the likelihood for violence and at least initially supported its use given he both encouraged it with incendiary rhetoric and took no timely action to stop it.”Legal experts say the scope of a Supreme Court decision on the issue would determine if these challenges will be quickly handled or play out for months.A ruling that Mr. Trump’s conduct cannot be construed as a violation of the 14th Amendment would effectively shut down challenges pending in several states. A narrower ruling on the Colorado case could allow Mr. Trump to remain on the state’s primary ballot, while giving lawyers challenging his eligibility a chance to argue that he should be kept off the general election ballot.The petitioners in Maine included Ethan Strimling, a former mayor of Portland and Democratic state legislator who filed a challenge along with two other former Maine lawmakers.“Secretary Bellows showed great courage in her ruling, and we look forward to helping her defend her judicious and correct decision in court,” they said in a statement on Thursday. “No elected official is above the law or our constitution, and today’s ruling reaffirms this most important of American principles.”Mr. Trump can appeal Ms. Bellows’s decision to Maine’s Superior Court within five days. Her order will not go into effect until the court rules on an appeal, which the Trump campaign says it intends to file soon. The Republican primaries in Maine and Colorado are both scheduled for March 5, known as Super Tuesday because so many states hold primaries that day.The challenges to Mr. Trump’s ballot access have been brought in more than 30 states in recent weeks, largely through the courts. But because of a quirk in Maine’s Constitution, registered voters there must first file a petition with the secretary of state.Ms. Bellows heard arguments on three such petitions on Dec. 15.After the Colorado decision, lawyers for Mr. Trump argued in new Maine filings that the Colorado ruling should be irrelevant there because the two states had different laws and standards, and because Mr. Trump did not have a fair opportunity to litigate the facts in Colorado. They also maintained that the secretary of state lacked the authority to exclude him from the ballot.“The constitution reserves exclusively to the Electoral College and Congress the power to determine whether a person may serve as president,” they argued in the filing late last week.Richard L. Hasen, a law professor at the University of California, Los Angeles, and an election law expert, said the Maine decision illustrated the power of the Colorado court ruling to ease the way for similar decisions.“It takes a lot of courage to disqualify a major candidate, but once the Colorado court did it, and thrust the issue into public light, it became easier for others,” he said.Given the “incredible complexity” of the legal questions involved, said Mr. Hasen, the U.S. Supreme Court is best equipped to resolve the issues. If the court opts not to disqualify Mr. Trump, its decision would not be binding for Congress, but it would make it “politically very difficult for Congress to say something different,” he said.In California, where the secretary of state is certifying an approved list of candidates, Democrats have overwhelming control of government, so the state might seem like a likely venue for a ballot challenge similar to the one that was successful in Colorado.But legal experts said that California, unlike many other states, does not explicitly give its secretary of state the authority to disqualify presidential candidates.Nonetheless, Lt. Gov. Eleni Kounalakis, a Democrat, asked Ms. Weber last week to “explore every legal option” to remove Mr. Trump from the ballot using the same constitutional justification cited by the Colorado Supreme Court.In response, Ms. Weber suggested last week that she planned to leave the question up to state and federal courts, which have already dismissed at least two lawsuits in the state challenging Mr. Trump’s qualifications. Ms. Weber wrote that she was obligated to address ballot eligibility questions “within legal parameters” and “in a way that transcends political divisions.”Gov. Gavin Newsom of California indicated last week that he did not believe officials in his state should remove Mr. Trump from the ballot. “There is no doubt that Donald Trump is a threat to our liberties and even to our democracy, but in California we defeat candidates we don’t like at the polls,” he said in a statement. “Everything else is a political distraction.”Nicholas Bogel-Burroughs More

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      Principles at Stake in Push to Disqualify Trump: Will of Voters and Rule of Law

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      If the Colorado Supreme Court is right that the former president is constitutionally ineligible to run for president, fundamental values are in severe tension.The Colorado Supreme Court’s ruling that Donald J. Trump is constitutionally ineligible to run for president again pits one fundamental value against another: giving voters in a democracy the right to pick their leaders versus ensuring that no one is above the law.Mr. Trump’s status as the Republican front-runner for the presidential nomination, despite his role in the events that culminated in the attack on the Capitol on Jan. 6, 2021, has created severe tensions between those two principles. If the court’s legal reasoning is correct, obeying the rule of law produces an antidemocratic result.That constitutional and political dilemma is likely to land before the U.S. Supreme Court. And while Mr. Trump’s name would stay on the primary ballot as the justices weighed the matter, their decision would have consequences far beyond his opportunity to win Colorado’s 10 Electoral College votes.For one, similar legal challenges to Mr. Trump’s eligibility are pending in at least 16 additional states. Moreover, the precedent the case will set could open or shut the door to the risk that partisans will routinely turn to state courts to try to keep major federal candidates off the ballot.Supreme Court justices have life tenure in the hope that their work will be independent of political influence, and, under the principle of the rule of law, it would be illegitimate for them to torque their interpretation of the Constitution with an eye toward political consequences. Under the rule of law, the Constitution and federal statutes apply equally to everybody, and no one’s power, wealth, political influence or other special status puts him or her above the law.But under the principle of democracy, the government’s legitimacy stems from the fact that voters decided whom to put in charge. The prospect of unelected judges denying voters the opportunity to make their own decision about Mr. Trump’s political future has given pause even to some of his critics who fervently hope Americans will reject him at the ballot box.Stephen I. Vladeck, a law professor at the University of Texas at Austin, said that even if one thinks that Mr. Trump’s actions rendered him unfit for office in line with the 14th Amendment, there are other — and less alarmingly novel — systems that could have addressed that problem before it reached the courts. These would have freed the Republican Party to have a starkly different primary contest, he said.“The problem is that we’re just not set up for this — we’ve run through the safety nets,” Mr. Vladeck said. “We’ve been spared from this problem in the few prior episodes where it could have arisen by different sets of constraints. And so now we’re in this position because those backstops have failed.”Had nine more Republican senators voted to convict Mr. Trump at his Jan. 6 impeachment trial, he would be ineligible to hold future office anyway, said Mr. Vladeck, who wrote a column about the complications of the Colorado court’s ruling titled “The Law and High Politics of Disqualifying President Trump.” And if more Republican voters were repelled by Mr. Trump’s attempt to secure an unelected second term, his political career would be over as a practical matter.The legal dispute turns on a clause of the 14th Amendment, which was added to the Constitution after the Civil War. Its third section says that people who betrayed their government oaths by engaging in an insurrection are ineligible to hold office. Citing Mr. Trump’s actions surrounding the Jan. 6. riot, the Colorado Supreme Court ruled on Tuesday that he was an oath-breaking insurrectionist whose name could not lawfully appear on the ballot.Colorado’s Supreme Court ruled on Tuesday that the former president was disqualified from holding office again.Stephen Speranza for The New York Times“If the language is clear and unambiguous, then we enforce it as written,” a four-justice majority wrote.But even if a majority of justices on the U.S. Supreme Court privately agree that the disqualification clause, by its plain text, seems clearly to bar Mr. Trump from returning to government power, it will not be surprising if they hesitate at the prospect of issuing a ruling affirming the Colorado court’s decision.If the justices want to overturn the Colorado ruling, they will have numerous potential offramps. Mr. Trump’s lawyers will have technical arguments, like whether the clause in question has legal force by itself or whether Congress would first need to enact a statute for it take effect. His lawyers will also have substantive arguments, like denying that the mob violence of Jan. 6 rose to the level of an “insurrection” in the constitutional sense.The dilemma invites comparisons to the Supreme Court’s intervention in the 2000 election, which overruled Florida’s Supreme Court and ensured that George W. Bush would maintain his narrow lead over Al Gore in that state to win its Electoral College votes and become the next president.A similarity is the risk of the appearance of partisanship. In the Bush v. Gore case, the five most conservative justices ensured that the Republican candidate would prevail. Today, the U.S. Supreme Court is controlled by a supermajority of six Republican appointees, so a decision to overturn the Colorado ruling and help Mr. Trump could also carry partisan overtones.A difference is the implications for democracy. The Florida Supreme Court in 2000 was not itself deciding the fate of the candidates but trying to allow the completion of a recount that would have clarified the will of voters. If the Supreme Court now overturns the Colorado ruling, it will be leaning in the direction of letting voters decide about Mr. Trump; upholding the state court’s ruling would be the opposite.There has always been inherent tension in the American governing system because the Constitution sets certain limits on democracy. For one, most decisions are made by elected representatives, not directly by plebiscites and referendums.The current dilemma invites comparisons to the Supreme Court’s intervention in the 2000 election.Mark Wilson/Newsmakers, via Getty ImagesThe structures of the Senate and the Electoral College system undercut the democratic principle that everyone has an equal say by giving disproportionate power to voters in sparsely populated states — including sometimes enabling the loser of the national popular vote, like Mr. Bush in 2000 and Mr. Trump in 2016, to nevertheless become president.Not everyone who lives in the United States is allowed to vote for government leaders. Noncitizen permanent residents, people under 18 and convicted felons in some states may not participate in elections — all of which conflicts with the principle that the legitimacy of the government stems from the consent of the governed about who will be in charge.Other requirements restrict who is eligible to hold office. The 22nd Amendment bars anyone from being elected president a third time, even if voters want to keep that person in place. It was added after President Franklin D. Roosevelt violated the constitutional norm of retiring after two terms, which President George Washington had established.The Constitution sets age limits: One must be at least 25 years old to be a member of the House, 30 to be a senator and 35 to be president, even if voters would prefer someone who happens to be younger. And the Constitution dictates that to be eligible to be president, a person must be a natural-born citizen. The antidemocratic nature of that rule drew some attention when the actor Arnold Schwarzenegger, a naturalized citizen who was born in Austria, was elected governor of California. He could never run for president, no matter how popular he was with voters.The issue of citizenship at birth has also been the subject of political attention. When Senator John McCain ran as the Republican presidential nominee in 2008, there were questions at the fringes about whether he was eligible because he had been born in the Panama Canal Zone, although to American parents.Mr. Trump’s rise to national political prominence was fueled by his lie that President Barack Obama, who was born in Hawaii, might have been born in Kenya. And in the 2016 Republican primary, Mr. Trump attacked a rival, Senator Ted Cruz of Texas, over his birth in Canada, similarly seeking to raise doubts about his eligibility for the presidency.But, despite Mr. Trump’s own history of questioning the eligibility of his political adversaries for president, his legal disqualification would risk undermining democratic legitimacy in a society where extreme polarization and partisanship are already raw.The moment calls to mind an ambiguous legal phrase that is often invoked as a rallying cry for courageously following the law but, as Mr. Vladeck pointed out, also carries a grim warning: “Let justice be done though the heavens fall.” More

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      How Could the Supreme Court Respond to Colorado?

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      David Firestone and Donald Trump engaged in insurrection and that disqualifies him from appearing on the 2024 ballot in Colorado, the state’s Supreme Court ruled Tuesday.In this audio conversation with the Opinion editor David Firestone, the editorial board writer Jesse Wegman says he believes that the United States Supreme Court will eventually take this case. But Wegman is less certain than he once was that “the court is just going to strike this down.”Illustration by The New York Times; Photograph by Scott Morgan/ReutersThe Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, X (@NYTOpinion) and Instagram.This episode of “The Opinions” was produced by Jillian Weinberger. It was edited by Kaari Pitkin with help from Phoebe Lett. Mixing by Isaac Jones and Carole Sabouraud. Original music by Carole Sabouraud. Fact-checking by Marge Mary Locker and Kate Sinclair. Audience strategy by Kristina Samulewski and Shannon Busta. More

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      Republicans Are Finding Out That ‘Pro-Life’ Means a Lot of Things to a Lot of People

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      Electoral results since the Dobbs v. Jackson Women’s Health Organization decision should tell a lot of people in the Republican Party something they absolutely do not want to hear: Even rank-and-file G.O.P. voters are not as pro-life as we might have thought when Roe v. Wade was the law of the land.That trend was confirmed last month in Ohio — the latest sign that the Republican Party needs to figure out a new way of addressing abortion.Many conservatives may call themselves pro-life, but in practice, that may be a more aspirational statement than an accurate reflection of hard policy views. Perhaps by figuring out what it now means to be pro-life — and recognizing that pro-life policy is easiest to sell only when it amounts to a ban on abortions later in pregnancy — Republicans can come up with a new approach to the politics of the issue.Before Roe was overturned, the term “pro-life” covered a lot of ground — which was useful over decades in galvanizing a broad coalition willing to use abortion as a political cudgel. As Republicans are finding out today, “pro-life” means many things to many people.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More

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      Is Trump Disqualified From Holding Office? The Question Matters, Beyond Him.

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      State courts in Colorado, Michigan, Minnesota and elsewhere have so far declined to rule in favor of challenges asserting that Donald Trump should be disqualified from holding the presidency again under Section 3 of the 14th Amendment. (Cases in Michigan and Colorado have been appealed.)Challengers assert that Mr. Trump is barred because, as stated in Section 3, he was an officer of the United States who, after taking an oath to support the Constitution, “engaged in insurrection or rebellion against” the country, or gave “aid or comfort to the enemies thereof,” before and during the Jan. 6, 2021, attack on the Capitol.Mr. Trump and his campaign have called this claim an “absurd conspiracy theory” and efforts to bar him “election interference.” Some election officials and legal scholars — many of them otherwise opposed to the former president — have also been critical of the efforts.The Georgia secretary of state, Brad Raffensperger, writes that invoking Section 3 “is merely the newest way of attempting to short-circuit the ballot box.” Michael McConnell, a former judge and professor at Stanford Law School, claims that keeping Mr. Trump off the ballot on grounds that are “debatable at best is not something that will be regarded as legitimate.”We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.We are confirming your access to this article, this will take just a moment. However, if you are using Reader mode please log in, subscribe, or exit Reader mode since we are unable to verify access in that state.Confirming article access.If you are a subscriber, please  More

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      The Trump Threat Is Growing. Lawyers Must Rise to Meet This Moment.

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      American democracy, the Constitution and the rule of law are the righteous causes of our times, and the nation’s legal profession is obligated to support them. But with the acquiescence of the larger conservative legal movement, these pillars of our system of governance are increasingly in peril. The dangers will only grow should Donald Trump be returned to the White House next November.Recent reporting about plans for a second Trump presidency are frightening. He would stock his administration with partisan loyalists committed to fast-tracking his agenda and sidestepping — if not circumventing altogether — existing laws and long-established legal norms. This would include appointing to high public office political appointees to rubber-stamp his plans to investigate and exact retribution against his political opponents; make federal public servants removable at will by the president himself; and invoke special powers to take unilateral action on First Amendment-protected activities, criminal justice, elections, immigration and more.We have seen him try this before, though fortunately he was thwarted — he would say “betrayed”— by executive branch lawyers and by judges who refused to go along with his more draconian and often unlawful policies and his effort to remain in office after being cast out by voters. But should Mr. Trump return to the White House, he will arrive with a coterie of lawyers and advisers who, like him, are determined not to be thwarted again.The Federalist Society, long the standard-bearer for the conservative legal movement, has failed to respond in this period of crisis.That is why we need an organization of conservative lawyers committed to the foundational constitutional principles we once all agreed upon: the primacy of American democracy, the sanctity of the Constitution and the rule of law, the independence of the courts, the inviolability of elections and mutual support among those tasked with the solemn responsibility of enforcing the laws of the United States. This new organization must step up, speak out and defend these ideals.Leaders of the legal profession should be asking themselves, “What role did we play in creating this ongoing legal emergency?” But so far, there has been no such post-mortem reflection, and none appears on the horizon. Many lawyers who served in the last administration — and many on the outside who occupy positions of influence within the conservative legal community — have instead stood largely silent, assenting to the recent assaults on America’s fragile democracy.We were members of the Federalist Society or followed the organization early in our careers. Created in response to left-liberal domination of the courts, it served a principled role, connecting young lawyers with one another and with career opportunities, promoting constitutional scholarship and ultimately providing candidates for the federal bench and Supreme Court.But the Federalist Society has conspicuously declined to speak out against the constitutional and other legal excesses of Mr. Trump and his administration. Most notably, it has failed to reckon with his effort to overturn the last presidential election and his continued denial that he lost that election. When White House lawyers are inventing cockamamie theories to stop the peaceful transition of power and copping pleas to avoid jail time, it’s clear we in the legal profession have come to a crisis point.We are thankful that there were lawyers in the Trump administration who opted to resign or be fired rather than advance his flagrantly unconstitutional schemes. They should be lauded.But these exceptions were notably few and far between. More alarming is the growing crowd of grifters, frauds and con men willing to subvert the Constitution and long-established constitutional principles for the whims of political expediency. The actions of these conservative Republican lawyers are increasingly becoming the new normal. For a group of lawyers sworn to uphold the Constitution, this is an indictment of the nation’s legal profession. Any legal movement that could foment such a constitutional abdication and attract a sufficient number of lawyers willing to advocate its unlawful causes is ripe for a major reckoning.We must rebuild a conservative legal movement that supports and defends American democracy, the Constitution and the rule of law and that incentivizes and promotes those lawyers who are prepared to do the same. To that end, we have formed a nonprofit organization, the Society for the Rule of Law Institute, to bring sanity back to conservative lawyering and jurisprudence.There is a need and demand for this new legal movement that the legal profession can readily meet. Pro-democracy, pro-rule-of-law lawyers who populate our law school campuses, law firms and the courts decry what is happening in our profession. They deserve an outlet to productively channel these sentiments.Originally formed in 2018 as Checks & Balances during what we took to be the height of Mr. Trump’s threat to the rule of law, the organization spoke out against his transgressions. Since then, the legal landscape has deteriorated to a degree we failed to imagine, with Mr. Trump and his allies explicitly threatening to upend fundamental tenets of the American constitutional system if returned to power.We believe it is necessary to build a legal movement with the capability to recruit and engage dues-paying members, file legal briefs, provide mentorship and career opportunities, convene supporters and speak out as vocally and forthrightly as is necessary to meet the urgency that this moment requires.First and foremost, this movement will work to inspire young legal talent and connect them with professional opportunities that will enable them to fulfill their vast potential without having to compromise their convictions.Second, the movement will focus on building a large body of scholarship to counteract the new orthodoxy of anti-constitutional and anti-democratic law being churned out by the fever swamps. The Constitution cannot defend itself; lawyers and legal scholars must. Conservative scholars like the former federal appellate judges Michael McConnell and Thomas Griffith and the law professor Keith Whittington, who joins Yale from Princeton next year, are models for a new and more responsible conservative legal movement.Third and most important, we will marshal principled voices to speak out against the endless stream of falsehoods and authoritarian legal theories that are being propagated almost daily. To do otherwise would be to cede the field to lawyers of bad faith. We have seen in recent years what the unchecked spread of wildly untrue and anti-democratic lies gets us. We lawyers have a gift for advocacy and persuasion; we must use it.While those in the pro-democracy legal community — many of them progressives — might disagree with our overall legal philosophy, we welcome them with open arms. We are at a point when commitment to fundamental classical liberal tenets of our republican form of government is far more important than partisan politics and political party — and even philosophical questions about the law. Our country comes first, and our country is in a constitutional emergency, if not a constitutional crisis. We all must act accordingly, especially us lawyers.The writers are lawyers. George Conway was in private practice. J. Michael Luttig was a judge on the United States Court of Appeals for the Fourth Circuit from 1991 to 2006. Barbara Comstock represented Virginia’s 10th District in Congress from 2015 to 2019. They serve on the board of the newly formed Society for the Rule of Law Institute, formerly called Checks & Balances.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More