Now that the Supreme Court has heard arguments in the case of President Trump and the 14th Amendment, it seems clear which side will win. The big question is what path the judges will take to allow him to participate in the polls.
Over the course of more than two hours of oral arguments Thursday, eight justices proposed at least five paths they could take to rule in Trump's favor.
Only Judge Sonia Sotomayor seemed to seriously consider ruling against him.
Here's a look at where the court may end up.
What is in game?
In December, the Colorado Supreme Court ruled that Trump was ineligible to appear on that state's ballot because of the 14th Amendment, which was adopted after the Civil War. Section 3 of the amendment says:
“No person shall be a Senator or Representative in Congress, or an elector for President and Vice President, or hold any office, civil or military, under the United States or under any State, who, having previously taken the oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, in support of the Constitution of the United States, shall have participated in an insurrection or rebellion against the same, or given aid or comfort to his enemies. But Congress can, by a two-thirds vote of each House, eliminate said disability.”
The amendment was designed to prevent former Confederates from regaining power in the US government, but it still has effect and covers Trump, the Colorado court ruled.
The decision had four key elements:
- As president, Trump had “taken the oath… as an officer of the United States” and is therefore covered by the amendment's language.
- According to a five-day hearing in a Colorado trial court, the attack on the US Capitol on January 6, 2021 was an “insurrection.”
- Trump “participated” in that insurrection through his words and deeds.
- Under the terms of the amendment, he is ineligible to “hold any office…under the United States,” including the presidency.
The justices of the United States Supreme Court seemed skeptical of all four elements.
Who decides?
The argument that seemed to attract the most support among the judges questioned the power of the state to decide the case.
“Why should a single state have the ability to make this determination, not only for its own citizens but for the rest of the nation?” Justice Elena Kagan asked Jason Murray, the lawyer representing voters who questioned Trump's eligibility. “That seems quite extraordinary, doesn't it?”
Murray insisted that Colorado was deciding only by its citizens and their votes. What the state did was no different than what others have done by excluding candidates who were too young to hold office or who were not born in the United States, he said.
Kagan was clearly skeptical. A ruling upholding Colorado's decision would have a national impact, he said.
“There are certain national issues where states are not the repositories of authority,” he said. “What does a state do when deciding who other citizens can vote for president?”
The 14th Amendment was “designed to take powers away from the states” after the Civil War, he later said, when Shannon Stevenson, a Colorado lawyer, defended the ruling. It would be strange if it were interpreted to mean that each state is allowed to go its own way, Kagan said.
Justice Ketanji Brown Jackson, like Kagan, among the three Democratic appointees to the court, similarly questioned the authority of states to make their own eligibility decisions.
Why would the drafters of the 14th Amendment “design a system” that would allow “different states to suddenly say, 'You're eligible, but you're not?'” he asked.
Chief Justice John G. Roberts Jr. said allowing a state-by-state approach would inevitably invite a court in a conservative state to rule that President Biden was inelectable.
“There will surely be disqualification procedures on the other side,” he said. “I would expect… a good number of states to say, whoever the Democratic nominee is, 'you're off the ballot.'”
Should Congress pass a law?
Justice Brett M. Kavanaugh pointed to a decision from 1869, a year after the 14th Amendment was ratified. Chief Justice Salmon P. Chase ruled that disqualification of insurrectionists could not be used unless Congress passed specific legislation to implement it.
Chase issued that ruling, in what is known as the Griffin case, in his role as an appeals court judge “circling the circuit,” as justices did in the 19th century. Therefore, it is not a binding precedent for the Supreme Court. But, as Kavanaugh noted, it is a guide to what at least some figures of the time believed the 14th Amendment meant. The fact that Congress passed a law the following year to establish the kind of process Chase was asking for is further evidence, she said.
That 1870 law was repealed long ago, and there is almost no chance that the current paralyzed Congress will now pass legislation to implement it. Therefore, a ruling on those grounds would effectively end the case.
One risk would remain for Trump: there is still an anti-insurrection law that states that a convicted person is disqualified from holding office. But Trump has not been charged under that law.
A Trump exception?
For Trump's lawyer, Jonathan Mitchell, a ruling on those grounds would be a partial victory, but the former president could risk future challenges.
The question of whether Trump was qualified “could come back with a vengeance” after the election, warned Murray, the lawyer challenging him.
“Ultimately, members of Congress may have to make a decision after a presidential election, if President Trump wins, about whether or not he is disqualified from office and whether they should count votes cast for him,” he said. Murray.
To end the case once and for all, Mitchell urged the court to rule that Trump was never an “officer of the United States” and is therefore exempt from the 14th Amendment ban.
Mitchell insisted that those words have a specific technical meaning in the Constitution: “'Officer of the United States' refers only to appointed officials,” not elected officials like the president, he told the justices.
Some prominent jurists have scoffed at that, saying that the Constitution should be read as a normal person would read it, not as a “secret code,” as a recent law review article put it.
Mitchell's argument also met with objections from some judges.
As Sotomayor noted, the argument seems “a little rigged” because it would benefit only Trump: uniquely among presidents, he was never an appointed federal official, a member of Congress or a state official before his election.
“It seems strange that President Trump goes unnoticed, in a way,” Mitchell admitted. But, he insisted, that's what the amendment's language requires.
Is the presidency covered?
Jackson posed a related question: Is the presidency one of the offices that the amendment prohibits an insurrectionist from holding?
The opening words of Section 3 list the specific charges from which an insurrectionist would be excluded, he noted. It includes senator, representative and member of the electoral college but never mentions the president. Perhaps that was deliberate, because the drafters of the 14th Amendment focused primarily on preventing “the South from rising again” by keeping former Confederates out of Congress and state offices, he said.
At the very least, the language has “ambiguity,” he said. The court could interpret that ambiguous language to allow voters to make their own decisions.
It's too soon?
Mitchell raised another argument that seemed to interest some justices: The amendment says that insurrectionists cannot “hold any office,” but it does not say that they cannot run for one.
That's important, because Congress could vote before Inauguration Day to lift the disqualification. By excluding Trump from the ballot, Colorado would, in effect, hijack his right to ask Congress for amnesty, he said.
When the justices meet Friday to discuss the case behind closed doors, they will see if they can consolidate behind one of those arguments. They are under pressure to act quickly, because the presidential campaign is underway. If they can produce a unanimous ruling, it could lower the partisan temperature of a fiery election year.
