It just doesn’t know how.
Maybe Section 3 doesn’t apply to the presidency per se, Justices Neil Gorsuch and Ketanji Brown Jackson said—and perhaps, along those same lines, it doesn’t prohibit oath-breaking former presidents from holding future office either? Or perhaps, Justice Samuel Alito pondered, the Fourteenth Amendment prohibits insurrectionists from holding office, but not from running for it? Justice Brett Kavanaugh seemed enamored of the idea that the amendment doesn’t allow states to disqualify candidates for federal office—as Colorado did here—without Congress first giving the go-ahead. In a related line of inquiry, which the justices seemed to coalesce around as arguments went on, Chief Justice John Roberts and Justice Elena Kagan suggested that perhaps there’s something inappropriate about allowing individual states to make decisions that could potentially determine a national election.
If these questions sound like they’re dancing around the main point—whether the Fourteenth Amendment prohibits Trump from a second presidential term because of his role in encouraging his followers to violently attack the U.S. Capitol in order to illegally hold on to power after losing an election—it’s because they are. During oral arguments that lasted about two hours, more than 50 minutes passed before anyone touched on the little matter of whether January 6 met the Fourteenth Amendment’s standard for an “insurrection.” (According to Jonathan Mitchell, Trump’s counsel, it did not—though it was, he admitted, a riot that was “shameful, criminal, violent—all those things.”) That question, along with the related question of whether Trump “engaged” in insurrection under Section 3, went relatively unaddressed for the rest of the argument. At one point, the chief justice sounded bemused by the possibility that anyone might expect him to adjudicate what did or didn’t constitute insurrection under the Fourteenth Amendment.
When the Supreme Court first agreed to hear the case, many onlookers predicted that the justices were unlikely to uphold the Colorado Supreme Court’s ruling barring Trump from the state’s primary ballot, simply because upholding the Colorado decision would be such a momentous act. To state the obvious, Anderson would be the first-ever instance in which a viable candidate for the presidency would be barred from the ballot on the grounds that he participated in an insurrection.
But the case also arrived at the Supreme Court’s door at a tricky time for the justices. Public skepticism of the Court has grown intense, following the Court’s recent sharp swing to the right and a string of unflattering press reports about the moneyed, insular world that the justices—particularly the Court’s conservatives—inhabit. A ruling against Trump would essentially rid one party of its preferred candidate, a drastic consequence that would thrust the Court even further into the public consciousness as a political actor (this, despite the fact that a ruling for Trump would be in some ways just as political, and even more in line with the presumed political preferences of the Court’s conservative majority). But nevertheless, judging by the justices’ skepticism of the arguments made by the counsel for respondents, Jason Murphy, they are eager to avoid ruling against the former president.
That would be much easier if the arguments against Trump weren’t so overwhelmingly strong. A careful study of the text and history of Section 3 shows clearly that the provision was designed to protect American democracy against exactly the kind of threat that Donald Trump represents. The justices have therefore been faced with the decision of either following the Fourteenth Amendment’s command and accepting the momentous consequence, or concocting some sort of escape route.
By the end of the hearing, it seemed like the justices were gravitating toward one possible avenue of escape: that a state shouldn’t, on its own, be able to disqualify a candidate for federal office—in which the entire country should theoretically have a say—under the Fourteenth Amendment. Perhaps a state might be able to if Congress had passed legislation allowing states to take such action—but it hasn’t. And for that reason, the argument goes, Colorado overstepped.
If the Court takes this approach, Trump’s name will still appear on ballots across the country. But because a decision along these lines addresses only the process by which Trump can be disqualified, not the substantive question of whether he is actually disqualified, it could leave unresolved the underlying question of whether the Fourteenth Amendment bars him from the presidency. As Murphy argued, pointing to an amicus brief filed by the longtime Republican election lawyer Ben Ginsberg and the law professors Edward B. Foley and Rick Hasen, this is a recipe for potential disaster. It means that, if Trump wins in November, Congress itself may face the decision of whether to disqualify him when it counts the electoral votes—next winter, on the sixth of January.