About That SCOTUS Decision

The unanimous High Court decision ended the legal quest to remove Trump from the Colorado ballot, but some fissures opened.

Image courtesy of PBS

The decision by the Supreme Court yesterday was expected. During oral argument earlier, only one justice—Sonia Sotomayor—seemed inclined to uphold the Colorado Supreme Court’s decision to strike Donald Trump from the state’s primary ballot. That’s why the “unanimous” decision—which is really more like a 5-4 decision, as I’ll explain below—didn’t produce much drama or shock when it came out.

Still, it’s important to understand what drove the considerations of the justices, especially the three liberal justices and Justice Amy Coney Barrett who disagreed with the approach of the majority but concurred with the end result.

Stepping back a bit, it’s clear that even the liberals agreed that there was a gaping constitutional hole around disqualifying what they called “oathbreaking insurrectionists”: who gets to decide whether they are.

The ruling came down to the justices all wanting to preserve uniformity and order in our elections, even if that meant making somewhat awkward interpretations around the text of Section 3 of the Fourteenth Amendment. In today’s piece I’ll take a deeper dive into why the Court came out the way it did and the split between the men and the women justices that developed over it. 

Uniformity and order

We can start from what is clear: Section 3 of the Fourteenth Amendment says plainly that oathbreaking insurrectionists are in fact ineligible to hold federal office. We can also presume that normally, it’s up to the states to assess federal ballot eligibility, including age and birthright citizenship. So why not also let the states decide whether someone is an ineligible insurrectionist, just as Colorado did?

This is what lawyers often call a “floodgates” problem—as in, such a ruling would open the floodgates to a host of other problems. It’s a version of “Pandora’s box” of Greek legend. If the Court allowed Colorado to disqualify Trump, given our current broken politics, a great deal of mischief would likely ensue.

As I wrote back in December, red states didn’t take the Colorado decision very well at the time:

Within moments after the Colorado Supreme Court barred Trump from appearing on that state’s primary ballot, right-wing leaders and media began calling for red states such as Texas and Florida to bar Biden in retaliation. 

I argued then that such threats from red states shouldn’t be given too much weight, as they would be constrained by the courts from successfully attempting, without evidence, to disqualify Joe Biden from office as an “insurrectionist.” 

Still, the Court was understandably concerned about a piecemeal or patchwork election process with conflicting rulings and results. The opinion notes,

[S]tate-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that “the President . . . represent[s] all the voters in the Nation.

From the language of the opinion, the Court also seemed concerned with something I honestly hadn’t considered because it seemed so far-fetched: whether a blue state might disqualify Trump from office after the election but before the electoral count was certified. Under Section 3, this is admittedly possible, at least in theory, and the Court majority latched on to the possibility. The opinion warned,

An evolving electoral map could dramatically change the behavior of voters, parties and states across the country, in different ways and at different times. The disruption would be all the more acute — and could nullify the votes of millions and change the election result — if Section 3 enforcement were attempted after the nation has voted. Nothing in the Constitution requires that we endure such chaos — arriving at any time or different times, up to and perhaps beyond the inauguration.

Further, given the prevalence of bad actors in certain red state legislatures and courts, it is at least conceivable that one of them could successfully challenge a Democratic candidate’s eligibility to hold office. For example, if a court in Colorado found that Donald Trump is an insurrectionist and disqualifies him, and then one in Florida disqualifies Joe Biden for allegedly giving aid and comfort to the enemy, then single states really could affect national elections in chaotic and unpredictable ways.

In seeking to avoid such chaos, which the drafters of Section 3 had apparently not duly considered, the Court yesterday reached a narrow ruling that could garner the support of all of the justices: “States may disqualify persons holding or attempting to hold state office,” the Court wrote. “But states have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the presidency.”

That language is not expressly in Section 3 or really anywhere in the Constitution. But neither does the Section state that it is the province of the states to determine federal office eligibility for alleged insurrectionists. Further, the opinion’s limitation on states to qualify federal officials is consistent with the general idea that individual states generally don’t have a right to interfere with the operations of the federal government. (I hope you’re listening, Texas.)

So if not the states, who gets to decide?

In order to find that Section 3 was not enforceable by the several states, the majority opinion felt the need to cite a legal basis other than, “This runs contrary to federalism, and it can’t be the intended result because it risks too much chaos.”

As I cautioned in December, one quick and direct way to do this was to throw it back to Congress:

On the one hand, the Court could call a complete halt to all state-level proceedings. It could achieve this by holding, for example, that only Congress can execute Section 3, but that it has failed to act. In the absence of any congressional implementation through legislation, the Section has no real force or effect. 

And ultimately, that’s exactly what the majority on the Court did. It held that “responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.”

The women justices—the three liberals plus Justice Amy Coney Barrett—were on board with the idea that this was not the purview of the states to decide. But they took issue with how far the opinion went by holding that Congress alone holds the key to Section 3 and laying out what it needs to do.

The question not before the Court

“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” That’s how the concurring opinion, which to me feels more like a dissent, begins. It’s actually the liberals quoting Chief Justice Roberts’s words from the Dobbs decision back at him, with some major high level shade. (Indeed, the concurring opinion was very nearly a dissenting one, as Mark Joseph Stern of Slate noted, because the metadata inadvertently seen on the document online left that electronic trail.)

The liberals wrote, and they are quite correct here:

In this case, the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the ground that he is an oathbreaking insurrectionist and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment. Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles. That is enough to resolve this case. Yet the majority goes further.

By “further,” they mean the majority opinion’s discussion of what Congress must do to enforce Section 3. The concurring opinion notes,

Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. 

Worse still, the majority delves into what would be considered a legitimate means of federal enforcement, laying out new rules when no one asked them to:

The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment.

So, what are the liberals worried about specifically? In a nutshell, if it takes an authorizing act of Congress to add any real teeth to Section 3, it effectively means that Section 3 is completely moot given the paralysis on Capitol Hill:

It is a fact that, absent congressional action — which we all know is not happening in the current Congress — the majority’s decision effectively nullifies Section 3 of the Fourteenth Amendment for now outside of federal criminal prosecution and conviction for “rebellion or insurrection.” 

(As a side note, this reminds me of when the Court eviscerated the Voting Rights Act’s Section 5 by punting the question of which jurisdictions should be covered back to Congress, which has been unable to reauthorize it ever since.)

The liberals further note that the majority in effect has traded one kind of chaos for another. Indeed, “the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”

This is an important point, because some January 6 defendants who were convicted for their actions on that day are now seeking to run for office. Section 3, as it currently stands, will be no bar to these criminals absent a new act of Congress, which of course will never happen in today’s political climate.

Justice Barrett strikes out on her own

It’s pretty clear that the three liberal justices believe Trump is an “oathbreaking insurrectionist.” They repeat that phrase several times in their opinion, and it probably caused Justice Amy Coney Barrett to write a separate concurring opinion rather than join them. But she signaled, at least here, some desire to return to an era where the Court doesn’t go out of bounds to answer questions not before it.

In her view, this case was only about Colorado’s actions. She wrote, “It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced. The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond,” and she would have preferred that “the Court should turn the national temperature down, not up.”

And if there’s a silver lining to the end of the Colorado case, it is this point. States won’t be able to disqualify Trump, or Biden for that matter. A contrary outcome probably would have ignited fury and charges that Trump was destroyed by the “Deep State” (including the Supreme Court), and we would have never heard the end of it.

Instead, we will have to go to the polls to decide, as a nation, who should be our next president. And while MAGA is unlikely to accept any kind of loss by Trump, a resounding electoral defeat is still the best hope we have for the prospect of ever moving on from Trumpism.