The Supreme Court doesn’t seem to want to disqualify former President Donald Trump from political office for his role in the January 6 insurrection. The only question left for them is how to write a ruling that overturns the Colorado Supreme Court’s decision to the contrary.
In more than two hours of oral arguments on Thursday, almost all of the justices rejected the idea that the disqualification clause of the Fourteenth Amendment could be used to bar Trump from running for president this November—or for any other future political office, for that matter. Even some of the court’s liberal justices seemed skeptical about the idea of applying the clause to Trump.
“I think the question you have to confront is why a single state should decide who gets to be president of the United States,” Justice Elena Kagan told Jason Murray, who argued on behalf of a group of voters who had sued the Colorado secretary of state to remove Trump from the ballot. Justice Ketanji Brown Jackson also pointedly asked whether Trump, as a former president, even fell under the clause’s language.
The case, Trump v. Anderson, revolves around a few different legal disputes. The clause applies to virtually anyone who previously took an oath to support the Constitution by holding public office. If they subsequently took part in “insurrection or rebellion,” they are barred from serving in Congress, as a member of the Electoral College, or from holding “any office, civil or military, under the United States.” Congress can remove individual disqualifications by a two-thirds vote of each chamber.
A group of voters sued to keep Trump off the ballot last year, arguing that his role in January 6 amounted to participation in an insurrection. The Colorado Supreme Court agreed in December in a 4–3 decision. The U.S. Supreme Court swiftly agreed to hear the case on an accelerated schedule.
At least a few of the justices appeared to be worried that states would use bogus claims to disqualify otherwise legitimate candidates. These fears are not wholly unfounded. As I noted earlier this week, a coalition of Republican governors and attorneys general suggested, in Goodfellas fashion, that such an event just might occur if Trump were to lose his suit to remain on the Colorado ballot. Some of the court’s conservative members amplified those threats during oral arguments.
“We have been told that if what Colorado did here is sustained, other states are going to retaliate and they are going to potentially exclude another candidate from the ballot,” Justice Samuel Alito said, in apparent reference to Biden. When Murray later argued that the courts would likely have to decide those cases as well and deem them frivolous, Chief Justice John Roberts pushed back.
“You might think they’re frivolous, but the people who are bringing them may not think they’re frivolous,” he told Murray. “Insurrection is a broad, broad term. And if there’s some debate about it, I suppose that will go into the decision and then eventually, what, we would be deciding whether it was an insurrection when one president did something as opposed to when somebody else did something else? And what do we do? Do we wait until near the time of counting the ballots and sort of go through which states are valid and which states aren’t?”
Some members of the court, including Roberts and Justice Brett Kavanaugh, then appeared to coalesce around the idea that states can’t use the disqualification clause against federal officeholders. Alito, later echoed by Kavanaugh, noted that there wasn’t much of a historical record of states using the clause to disqualify federal officeholders. They reasoned that the absence of historical action could mean that it was precluded by historical practice.
This would be a convenient way to dispose of this particular case, but it will lead to other problems down the line. For one thing, it would invite other actors in the constitutional system to take action after the presidential election is over. If Trump wins in November and Democrats also hold both chambers of Congress, for example, they could theoretically decline to count Trump’s electoral votes because of his insurrectionist disqualification on January 6, 2025.
Justice Sonia Sotomayor dinged Trump attorney Jonathan Mitchell for making an argument that essentially only applied to his client. Since Trump never held prior elected office, he would be the only president in at least two hundred years who wouldn’t fall under the clause’s terms. “But just so we’re clear, under that reading, only [Trump] is disqualified because virtually every other president except Washington has taken an oath to support the Constitution, correct?”
“That’s right,” Mitchell replied. He noted that it was an open question whether John Adams would count since he took an oath as vice president, but others hypothetically would. “Yes, President Biden would certainly be covered,” he added. “He took the oath as a member of Congress. And that’s true of every previous president.”
But Mitchell’s overall arguments did not appear to persuade any of the justices, who instead tried to find their own off-ramp to dispose of this case. At one point, Mitchell conceded that his distinction of “office” versus “officer of the United States” didn’t make much sense for early American leaders to adopt. “Is that rule a sensible one?” Kagan asked, referring to the Constitution’s original Framers. “You know, if they had thought about it, what reason would they have given for that rule?”
“I don’t think there is a good rationale given that this was compromise legislation,” he said, referring to the Constitution. “And sometimes this happens with statutory compromises and even constitutional compromises.” Indeed, other legal scholars have pointed out that excluding the president from the “officer” category leads to all sorts of other problems, not least of which is that it would exempt him from the rule against holding positions in other branches of government.
Jackson, however, appeared to agree with that framework as a potential solution for the case. She tried to suggest that the amendment’s drafters intentionally omitted the presidency because their Reconstruction-era concerns were focused on other problems. “The pressing concern, at least as I see the historical record,” she explained, “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. And that’s a very different lens.”
But that would lead to an arguably even more absurd reading: that the amendment’s drafters thought ex-Confederates should be excluded from every public office in the republic except the one that commands the nation’s armed forces. If they sought to exclude anti-constitutional figures from public life, why would they leave an exception for the office where they could do the most damage?
I often note that oral arguments can be an imperfect window into the court’s thinking; the justices, given time to ruminate, often reach conclusions in their final decision that weren’t hinted at during their public deliberations. This does not seem to be one of those cases. Almost all of the justices seem fundamentally opposed to the idea that they should allow Colorado to disqualify Trump from the ballot. (Sotomayor was the only one who didn’t signal as much.) How exactly they get from that sensation to a workable ruling remains to be seen. But it would be stunning after Thursday’s arguments if the case went any other way.
Getting to what seems to be their preferred legal destination won’t be an easy endeavor. The justices will have to get around the plain text and intent of the disqualification clause, as well as the obviousness of what happened on January 6, 2021. “The Framers of Section 3 knew from painful experience that those who had violently broken their oaths to the Constitution couldn’t be trusted to hold power again because they could dismantle our constitutional democracy from within, and so they created a democratic safety valve,” Murray argued. “President Trump can go ask Congress to give him amnesty by a two-thirds vote. But, unless he does that, our Constitution protects us from insurrectionists.”
Some of the justices appeared uneasy with rendering a decision that would deprive millions of Americans of their preferred candidate. Murray, for his part, noted that Trump himself tried to do exactly that four years ago, except through illegal means instead of constitutional mechanisms. “The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him,” he told the justices. “And the Constitution doesn’t require that he be given another chance.” Since the court heard the case on an accelerated schedule, a decision could come within the next few weeks.
