The Justices seem to want to avoid a major decision about whether Trump can serve as President—but if they do so they may set off a national crisis.
The Court is reviewing a decision by the Colorado Supreme Court, which found, under Section 3, that Trump cannot appear on the state’s Republican primary ballot. Jonathan Mitchell, who argued in the Court as Trump’s attorney, is an interesting figure to counter that position. He gained notoriety in 2021 for devising the novel Texas law that nullified the constitutional right to abortion in that state even before the overruling of Roe v. Wade. Mitchell’s view in that context was that a state could legitimately act to vindicate its own interpretation of the Fourteenth Amendment even if it directly conflicts with the Supreme Court’s interpretation—and, indeed, the Court declined to stop the blatant end run around its prior constitutional rulings on abortion. In the current case, though, Mitchell is asking the Court to put a “swift and decisive end” to states’ efforts to declare Trump disqualified and remove him from the ballot, as Trump’s legal team put it in a brief last month, rather than leave each state to interpret and apply Section 3 for itself as part of the states’ power to regulate elections for federal offices. A win for Mitchell, based on what he argued, would result in the Court’s uniform imposition of an interpretation of Section 3 that is contrary to that of Colorado’s, and a prohibition of any state from disqualifying a candidate for federal or even state office under that constitutional provision without Congress’s authorization.
None of the Justices seemed particularly keen to see a situation in which we go to vote in November, and Trump is a Presidential candidate on some states’ ballots but disqualified from others. Shannon Stevenson, Colorado’s solicitor general, attempted to assure the Justices that it was not terribly anomalous for different states to adopt opposite conclusions about a candidate’s constitutional qualifications for office, pointing out that, in this election cycle, Colorado has disqualified a Presidential candidate from the primary ballot for not being a natural-born citizen, as the Constitution requires a President to be, though the candidate remains on the ballot in other states. The “huge amount of disparity in the candidates that end up on the ballot” in different states was, Stevenson said, a feature rather than a bug of the electoral process under our federal constitutional system. But the embrace of the “messiness of federalism,” as she put it, didn’t seem likely to appeal to Justices in the context of ballots in a national Presidential election.
Chief Justice John Roberts predicted a “pretty daunting consequence” of allowing the Colorado decision to stand: that “a goodly number of states” would take the Democratic candidate off the ballot, while others would do so for the Republican candidate, so that only citizens in a handful of states would have the opportunity to choose between the two. Jason Murray, arguing for a group of Republican voters in Colorado who had initially brought the case to disqualify Trump, pointed out that a hundred and fifty years have passed since Section 3 was last invoked to disqualify someone from office, adding, “insurrection against the Constitution is something extraordinary.” That might have been an effective reply in different political times, but Roberts’s prediction of what might happen was sadly plausible: it’s easy to imagine that, if the Court were to say that the states have the power to disqualify candidates, red states would attempt to disqualify Joe Biden. Justice Samuel Alito echoed the concern, worrying that states would “retaliate” against each other with disqualifications. Stevenson’s attempted salve, that “we have to have faith in our system that people will follow their election processes appropriately” and would take “realistic views of what insurrection is under the Fourteenth Amendment” was met with skepticism by Alito. It was a poignant moment because the reason for the case is precisely that Trump and his followers resisted following the election process and attempted to undo it, while making false accusations of voter fraud. It is entirely likely that, going forward, the use of the concept of “insurrection” won’t be limited to the events of January 6th, and that disqualification efforts will be weaponized in by-now predictable ways.
Section 3 applies to any person who, as an “officer of the United States,” took an oath to support the Constitution, and who would then hold “any office, civil or military, under the United States.” The tremendous amount of quibbling at oral argument over whether the former President was an “officer of the United States” who took an oath to support the Constitution, and whether the Presidency is an “office under the United States,” is perhaps the most silly-seeming but important of the various debates. If the Court decides that Trump, when he was President, was not an “officer of the United States,” or that the office for which he is now running is not an “office under the United States,” then the case would be resolved cleanly and definitively in his favor. On one hand, it seems absurd to interpret a measure whose purpose was to prevent former Confederates from holding office to mean that Jefferson Davis, the former President of the Confederacy, could have become the President of the United States. On the other hand, perhaps the concern of Section 3 was not the Presidency after all. As Justice Ketanji Brown Jackson expounded during oral argument, giving support to Mitchell that he didn’t even ask for, “the pressing concern” of the Framers of the Fourteenth Amendment “was actually what was going on at lower levels of the government, the possible infiltration and embedding of insurrectionists into the state government apparatus and the real risk that former Confederates might return to power in the South via state-level elections either in local offices or as representatives of the states in Congress.” This seemed to Jackson “very different than the worry that an insurrectionist will seize control of the entire national government through the Presidency.” In this unusual exchange, instead of eagerly grabbing the olive branch, Mitchell gently refused it, saying “there was some concern by some people about Confederate insurrectionists ascending to the Presidency,” and that Trump’s legal team didn’t want to “just look at the historical evidence and pick the evidence that we like and interpret it tendentiously”—a remarkably candid dig by a committed textualist at the opportunism that sometimes characterizes the use of history in Justices’ opinions.
A number of Justices appeared intrigued by Mitchell’s argument that Section 3 prohibits insurrectionists from holding office but not from running for office. That argument asserts that a state cannot disqualify Trump from the ballot—even if it believes he committed insurrection and is disqualified from holding office—because, under Section 3, “Congress may by a vote of two-thirds of each House, remove such disability.” Congress did indeed do so for a number of ex-Confederates who ran for office and won elections. Since we can’t know yet whether Congress will remove Trump’s alleged disability, the argument goes, Trump must be allowed to run and to potentially win the election. The argument is tempting because it resolves this case while not resolving the hardest questions. But that temptation also holds the greatest risks. It all but guarantees that, if Trump wins, members of Congress, a sizable portion of the public, and a number of states will contest his ability to hold office. There is little chance of his getting a two-thirds vote of each house of Congress saying that he can hold office—or of his and his supporters coming close to conceding that he even needs Congress’s approval to hold the Presidency. Some states may attempt to refuse to certify electoral votes for Trump on the grounds that he is disqualified under Section 3. Some members of Congress may refuse to count electoral votes for him on the same grounds, on January 6, 2025. If we thought that January 6, 2021, was an insurrection, we might see something even closer to how the Framers conceived of the term. It’s unclear what the Chief Justice would be required to do if Trump, Trump’s running mate, and Biden all claimed to be the proper person to be sworn in as President on January 20, 2025. And, if Trump did manage to get sworn in, there could be continuing foment about his Section 3 disqualification that might cause officials to refuse to recognize his Presidency and disobey his orders. Justice Neil Gorsuch asked, “Why would anybody have to obey a direction from him?” Alito asked, “Would it be lawful for military commanders and other officers to disobey orders?” It would be a legal, political, and likely violent nightmare.
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.