The Nine can set not one, but two copybook precedents in Trump v. Anderson.
On February 8, the U.S. Supreme Court heard oral arguments in Trump v. Anderson, the lawsuit that will decide whether state officials may keep Donald Trump off the ballot. The result of this case will have profound consequences for American democracy; the right is concerned about a regime that can use lawfare to keep its chief political opponent off the ballot, while the left somehow thinks it has to prevent democracy in order to save it.
Even the left wing of the Court was clearly skeptical of Colorado’s actions. Associate Justice Ketanji Brown Jackson surprisingly seemed quite open to the idea that Section 3 of the 14th Amendment, which prohibits certain persons who have engaged in insurrection from then holding “any office” under the United States, does not include the presidency. Associate Justice Elena Kagan expressed a more general sense that, well, this is quite a national issue and something just doesn’t seem right about allowing a state to unilaterally remove a popular presidential candidate from the ballot. This latter sentiment pervaded the entire oral argument. The justices collectively seem disinclined to believe that a state can exercise such authority over a presidential election. It seems fairly likely that Colorado’s action will not stand and that the Supreme Court will prohibit state officials from removing Donald Trump from the ballot.
But that is not the end of the analysis. The grounds on which the court bases its decision will have profound consequences, both for the 2024 election and beyond.
Before discussing the two most likely outcomes, it is worth addressing an argument that was not emphasized in this case but that many conservatives believe is the crux of the issue: Common sense shows that Trump did not engage in an insurrection. The protest-turned-riot of January 6, complete with questionable activities by federal agents in the midst of it all, does not seem to be an “insurrection” in any meaningful sense. Thousands of right-wing protestors showed up at the Capitol, a number crossed the barrier into the Capitol itself, but most or virtually all of them were unarmed. This doesn’t come across as a legitimate attempt to overthrow the government. Even granting that January 6 was an insurrection, it is baffling to see how Trump engaged in that insurrection. He wasn’t there. How did he legally engage in the event?
Trump’s attorney specifically stated that he did not focus on this issue at the Supreme Court for strategic reasons. If Trump were successful on this argument, the result would be a ruling from the Court that there was not enough evidence that Trump engaged in insurrection and the issue would go back to Colorado for further proceedings on this question, stepping onto a legal merry-go-round journey of indefinite duration. That is not an effective legal strategy to put a stop to the nonsense, even if the argument is strong.
The first likely ruling is that Section 3 of the 14th Amendment is not automatically self-executing upon all officials who fit the definitions within it, that it is not for the states to decide that this constitutional provision is enforceable against an official, and that Congress alone has the power to enforce this through legislation. This question was addressed in Griffin’s Case (1869) by Chief Justice Salmon Chase. It was a circuit decision, so it is not binding precedent, but its reasoning was heavily relied upon in the Trump argument.
Essentially, Chase reasoned that reading this provision as self-executing would instantly declare all those who engaged in insurrection or rebellion to be ineligible to hold office. He observed that a reading of Section 3 that unseats every officer who holds office in contravention of this section “is repugnant to the first principles of justice and right embodied in other provisions of the Constitution, [and] is not to be favored, if any other reasonable construction can be found.”
Chase finds such a reasonable alternative construction of Section 3:
Is there, then, any other reasonable construction? In the judgment of the court there is another, not only reasonable, but very clearly warranted by the terms of the amendment, and recognized by the legislation of congress. The object of the amendment is to exclude from certain offices a certain class of persons. Now, it is obviously impossible to do this by a simple declaration, whether in the Constitution or in an act of Congress, that all persons included within a particular description shall not hold office. For, in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by Congress.
This applies a classical legal principle of law: If there is more than one way to read a legal text, an interpretation that would lead to absurd results should be avoided. To simply exclude “all insurrectionists or rebels” from office without a mechanism to decide who fits the criteria would be absurd. Therefore, Chase finds a reasonable alternative by reading Section 3 of the 14th Amendment in harmony with Section 5, which gives Congress the power to enforce the Amendment via legislation. This reading of the Amendment would preclude Colorado from deciding that Trump cannot be on the ballot, simply because it would be left to Congress to enact legislation to enforce the insurrectionist language.
The second way the Supreme Court could rule on this case is by holding that the office of President of the United States is excluded from the Fourteenth Amendment: “No person shall…hold any office, civil or military, under the United States…who, having previously taken an oath…as an officer of the United States…shall have engaged in insurrection or rebellion against the same….” There are strong arguments that the president is distinct and is not an “office, civil or military, under the United States” or “an officer of the United States.” If the Court accepts either of these arguments, the case is over and neither Congress nor a state can apply the Fourteenth Amendment to Trump. There seems to be quite a bit of interest in this argument; indeed, Brown Jackson seemed to be making this argument that the clause does not apply to the president more strongly than Trump’s attorney was.
Both of these arguments were entertained favorably by the members of the Court. Particular judges will likely accept one but not the other. Kagan’s sense that this is a national issue not to be decided by individual states fits nicely with Chase’s reasoning in Griffin’s Case. Brown Jackson’s line of questioning shows that she was quite sympathetic to the argument that the president is excluded from the two lists found in Section 3. Some of the avowed originalists on the Court may shy away from following Griffin’s Case, because it is an argument from classical legal principle that may not be accepted as a sufficiently originalist interpretation of the 14th Amendment, so it is reasonable to expect at least some members of the conservative wing of the Court will prefer to stick to the latter argument in their reasoning.
The likely end result seems to be a decision where a supermajority (this could very possibly be a 7–2, 8–1, or even unanimous 9–0 decision) decides that states cannot remove Trump from the ballot under the 14th Amendment. Unanimous reasoning seems unlikely. Chances are there will be two separate opinions expressing the two arguments explained above. Ideally, there would be at least five votes for each opinion, so that two good precedents are set: first, that this clause does not apply to the president or vice president, and, second, that the states cannot enforce this clause unless and until Congress acts. Such a result would effectively end the use of January 6 hysteria for lawfare against conservatives (not only Trump) running for office, or at least keep them on the ballot—even if they do go to jail.
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