In Mess of an Opinion, SCOTUS Rules Trump Must Stay on Colorado Ballot
Four justices say their colleagues overreached.
DON’T BE FOOLED BY THE HEADLINES heralding as “unanimous” today’s Supreme Court decision striking down the Colorado ballot ineligibility ruling. All nine justices did agree that no state, including Colorado, has the constitutional authority to put Section 3 of the Fourteenth Amendment to work. All nine justices thus effectively agreed that the horrors of January 6th are not bad enough to keep Donald Trump from running again this year. Had that been all the majority held, the decision might in fact have been unanimous. But the majority went further, making it virtually impossible that Section 3 will ever have a role in federal elections moving forward.
The Court did not have to do this. And four of the justices—all of the women on the Court—made clear that they would have preferred the Court not do it.
The fact that the Court’s opinion didn’t even bother to grapple with the part of the text dealing with insurrection speaks volumes. The justices instead sidestepped Section 3, despite its clear application to the facts of Donald Trump, because to uphold Colorado “could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times,” and “could nullify the votes of millions and change the election result.” In other words, the justices took it upon themselves to decide not what the Constitution requires but what’s best for the country.
But it’s not the Supreme Court’s job to decide what’s best for the country. Elections are for voters and candidates, not unelected justices, and under the Constitution, states get to decide how to run their elections unless Congress steps in to make nationwide rules for federal elections. Conservatives usually defer to states and notions of federalism, but now in Trump v. Anderson—as in Bush v. Gore, the case that decided the 2000 election—they are overruling state courts on an election matter. This time, though, the justices changed history not just for this election but for all federal elections at any level at any point in time in the future in our post-January 6th world.
TO RECAP, SECTION 3 of the Fourteenth Amendment was a post-Civil War addition to the Constitution designed to keep former Confederates from blowing up the reconstructed federal government. It bans people who, having taken an oath to defend the Constitution, subsequently engaged in insurrection or rebellion, and allows Congress, by two-thirds vote of both Houses, to override a disqualification. Congress didn’t do that here, so the Supreme Court took over.
Even at oral argument, none of the justices took issue with the Colorado court’s finding, after a five-day trial, that Trump engaged in insurrection on January 6, 2021. Nor did they tinker with the scope of Section 3 in their decision, as some conservative legal minds urged, by concluding that presidents aren’t even covered.
Instead, the justices took the easiest off-ramp and held that Congress must pass legislation activating Section 3; otherwise, Section 3 must sit idly by as a dead letter.
Of course, because Congress is hopelessly polarized and feckless, the notion that it will come together and enact bipartisan legislation that will survive a filibuster and be signed into law by a president to ban future insurrectionist presidents from holding office is fanciful. The justices know this.
BUT THE MAJORITY WENT FURTHER. In their per curiam opinion—meaning nobody took responsibility for the authorship, including Justice Clarence Thomas, whose wife participated in the January 6th pressure campaign—they suggested that even existing federal legislation isn’t good enough to invoke Section 3. That could now possibly include the federal law that already criminalizes insurrections and imposes a ban on holding office for those convicted of that crime. Special Counsel Jack Smith didn’t include that charge in his January 6th indictment, and after this decision, whether that existing penalty would hold constitutional water may be called into question.
As Justices Sotomayor, Kagan, and Jackson wrote, in concurring with the judgment but not the majority opinion: “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.”
There are lots of federal statutes that might be used by creative lawyers to enforce federal law against officeholders on a range of wrongdoing. All nine justices agreed that only federal law can be used to trigger Section 3, but only five voted to effectively wipe out the use of existing federal laws for that purpose altogether.
Even more audaciously, the majority went on to tell Congress what the approved hypothetical future legislation must look like. “To comply with that limitation,” it wrote, “Congress ‘must tailor its legislative scheme to remedying or preventing’ the specific conduct the relevant provision prohibits.” It must “reflect ‘congruence and proportionality’ between preventing or remedying that conduct ‘and the means adopted to that end.’” What this could possibly mean in practice is anybody’s guess. But even if Congress does manage to pass implementing legislation, the conservative justices have left open the door to strike down whatever the legislature comes up with as not passing their squishy test.
The four women on the Court wrote separately to note their disagreement with how far the majority extended itself in this ruling, dictating to Congress how to do its job and effectively writing Section 3 out of the Constitution. It’s too bad Justice Amy Coney Barrett, in the name of “turn[ing] the national temperature down, not up,” didn’t join the other three in condemning this unprecedented power grab.
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