For those who need a scorecard, the Deus ex Machina was a plot device used by ancient Greek playwrights like Euripides to write themselves out of a tight corner. It literally means god of the machine. The featured image is of Medea escaping trouble with her Deus ex Machina. FYI, the image is a quilt. I am not making this up.
Last week, I criticized pieces by Jonathan Chait and Sheesh MacCreesh from New York Magazine’s Intelligencer section. I start today off by praising Ankush Khardori for his look at the 14th Amendment’s disqualification clause: Do Liberals Think The Supreme Court Will Save Us From Trump?
Khardori’s answer is a resounding NO. Same section, same magazine, much better analysis.
I tackled this issue a week ago today but my post didn’t have as many money quotes as Khardori’s piece. I’ll put aside my jealousy for a moment and present one:
“If you are a student of very recent legal history, you might have found yourself scratching your head in recent weeks, as some commentators on the left and the anti-Trump right have joined forced in a dubious, long-shot effort to argue that Donald Trump is constitutionally ineligible to run for reelection. They want to use lawsuits to disqualify Trump from state ballots before next year’s elections on a theory that centers on a largely forgotten section of the 14th Amendment to punish Trump’s effort to overturn the 2020 election results. It sounds a lot like One Neat Trick that could get rid of Trump once and for all, but the boosterism has bordered on naïve and at times disingenuous. The impulse reflects a familiar reflex among some of Trump’s political opponents to root for a legal miracle — some sort of deus ex machina — that might rid them of Trump without doing the hard work of winning an election.”
I stole the Deus ex Machina image from him: Sue me. It’s the obvious image for this situation. Who better to riff on and rip off Euripides than a Greek American blogger?
Khardori centers his analysis on the obvious fact that the Supremes are unlikely to go along with this scheme. Sam the Sham Alito and Clarence the Grifter are automatic no votes; they dig the reactionary smoke blown by the MAGA maggots. Then there are the three Trump appointees who seem unlikely to do something that casts more illegitimacy on their selections. I have no idea how the Chief and the three liberal justices would vote but I can count. It feels like a longshot to me. Longshot cases should NOT be argued in front of *this* Supreme Court.
By its plain language, the disqualification clause isn’t limited to Confederates. BUT there *is* case law that isn’t helpful to the cause:
“The originalist framework can lead its adherents to some strange places, particularly if they have already made up their minds about what the result should be. Baude and Paulsen, for instance, breeze past two statutes from the late 1800s — not that long after the 14th Amendment went into effect — that complicate their analysis, but they produce no meaningful or contemporaneous historical evidence to support their conclusions.
Somewhat amusingly, the authors go to great lengths to shore up their position against the very unhelpful fact that it was rejected the year after the 14th Amendment was adopted. Chief Justice Salmon Chase issued a decision that dismissed the idea that the provision created a sweeping and self-executing prohibition on public office and concluded that Congress had to pass legislation to implement it. Chase wrote the opinion while “riding circuit,” so it is not the law of the Supreme Court, but under ordinary circumstances, this would seem to be pretty devastating for originalist legal scholars. After all, are they better positioned to conclude that Chase’s interpretation “does not hold up as an original matter” — their words — than a sitting Chief Justice who was alive at the time and explicitly contemplated the question? There are also plenty of legitimately unsettled questions concerning the application of the 14th Amendment to Trump, including whether the president is himself “an officer of the United States” or if instead that phrase applies only to subordinate officials in the government.”
Shorter Khardori: Litigants are going to need better arguments than the textual ones advanced thus far.
Time to remove my lapsed lawyer fedora and don my amateur historian top hat. Salmon P. Chase was one of Lincoln’s Team Of Rivals. He was put on SCOTUS by the wily Lincoln to remove a possible political opponent from the fray. Chase still wanted to be president, so he executed one of our history’s biggest, but lesser known, U-turns: going from pre-war abolitionist to rebel appeaser. It didn’t work. Shorter Adrastos: Salmon P. Chase was a hack who would do anything to be president.
Back to our own troubled times. I often criticize my fellow liberals as bedwetters for their extreme pessimism and belief that the worst will always happen. There’s another train of thought on the left that I also refuse to board: the wishful thinkers. Many hoped that the Mueller Probe, impeachments, and indictments would save us from Trumpism. I too am disappointed that none of these developments shattered the MAGA cult. The solution lies at the ballot box, not in the courts.
Just as there was no Deus ex Machina in the 1860’s to secure the rights of freed slaves, there is no Deus ex Machina in 2023 to save us from a revenge crazed former president. We have to save ourselves by turning out to vote in record numbers. I find myself in the awkward position of quoting a right-wing general in support of this proposition:
Douglas MacArthur was talking about the Truman administration’s limited war in Korea, but it applies to our current political circumstance as well. There is no substitute for victory at the ballot box. Our homegrown fascists have to be defeated at the next election. Jack Smith, Alvin Bragg, and Fani Willis can’t save us. We have to save ourselves.
Repeat after me: There Is No Deus Ex Machina.
Speaking of machine gods, the last word goes to Yes: