Five ways the Supreme Court could rule in Trump’s favor on the 14th Amendment

(Jacquelyn Martin/Associated Press)

Five ways the Supreme Court could rule in Trump’s favor on the 14th Amendment

Election 2024

David Lauter

February 9, 2024

Now that the Supreme Court has heard arguments in President Trump’s case and the 14th Amendment, it seems clear which side will win. The big question is what route the judges will take to allow him onto the ballot.

Over the course of more than two hours of oral arguments on Thursday, eight justices put forward at least five paths they could take to rule in Trump’s favor.

Only Justice Sonia Sotomayor seemed to seriously entertain the idea of ​​ruling against him.

Here’s a look at where the court could end up.

What is going on

In December, the Colorado Supreme Court ruled that Trump was ineligible to appear on that state ballot because of the 14th Amendment, which was adopted after the Civil War. The changes to Article 3 read:

No person shall be a Senator or Representative in Congress, or an elector of the President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath , as a member of Congress, or as an officer of the United States, or as a member of a state legislature, or as an executive or judicial officer of any state, in support of the Constitution of the United States, has been engaged in insurrection or rebellion against the same, or aid or comfort given to the enemies thereof. But Congress, by a vote of two-thirds of each House, may eliminate such a disability.

The amendment was intended to prevent former Confederates from regaining power in the US government, but it still has effect and concerns Trump, the Colorado court ruled.

The decision consisted of four key elements:

As president, Trump had taken an oath… as an officer of the United States and is therefore covered by the wording of the amendments. Based on a five-day hearing in a Colorado court, the attack on the U.S. Capitol on January 6, 2021 was an insurrection. Trump was involved in that uprising with his words and actions. Under the terms of the amendment, he is ineligible to hold any office under the United States, including the presidency.

The U.S. Supreme Court justices seemed skeptical about all four elements.

Who gets to decide?

The argument that seemed to gain the most support among the justices questioned the state’s power to decide the case in the first place.

Why should a single state have the ability to make this decision, not only for its own citizens, but also for the rest of the nation? Justice Elena Kagan asked Jason Murray, the lawyer who represented voters who questioned Trump’s eligibility. That seems quite extraordinary, doesn’t it?

Murray insisted that Colorado decided only for its citizens and its ballots. 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 nationwide ramifications, she said.

There are certain national issues where states are not the repository of authority, she said. What does a state do to decide who other citizens can vote for for president?

The 14th Amendment was intended to strip states of powers after the Civil War, she said later, as Colorado attorney Shannon Stevenson defended the ruling. It would be strange if it were interpreted to mean that each state could go its own way, Kagan said.

Justice Ketanji Brown Jackson, like Kagan, one of three Democratic appointees to the court, similarly questioned the authority of states to make their own eligibility decisions.

Why would the writers of the 14th Amendment design a system that would suddenly let different states say, “You qualify, you don’t?” she 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 ineligible.

There will certainly be a disqualification procedure on the other side, he said. I would expect a large number of states to say, whoever the Democratic candidate is, you’re excluded from the ballot.

Should Congress pass a law?

Justice Brett M. Kavanaugh pointed to a decision from 1869, the year after the 14th Amendment was ratified. Chief Justice Salmon P. Chase ruled that the insurgent disqualification could not be used unless Congress passed specific legislation to implement it.

Chase issued that ruling, in the so-called Griffins case, in his role as an appellate judge, as judges did in the 19th century. So it is not a binding Supreme Court precedent. But, as Kavanaugh noted, it is a guide to what at least some figures at the time believed the 14th Amendment meant. The fact that Congress passed a law the following year to create the kind of process called Chase is further evidence, he said.

That 1870 law was long ago retconned, and there is virtually no chance that the current, deadlocked Congress would pass implementing legislation now. A ruling on these grounds would therefore effectively end the case.

For Trump, one risk would remain: there is still an anti-insurrection law in place, which stipulates that anyone convicted will be barred from office. But Trump has not been charged under that law.

A Trump exception?

For Trump’s attorney, Jonathan Mitchell, a ruling on these grounds would be a partial victory, but the former president risks future challenges.

The question of whether Trump was qualified could retaliate after the election, Murray warned, saying the lawyer would challenge him.

Ultimately, after a presidential election, if President Trump wins, members of Congress may have to decide whether or not to disqualify him from office and whether votes cast for him should be counted, Murray said.

To end the matter 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 emphasized that these words have a specific, technical meaning in the Constitution: Officer of the United States refers only to appointed officials, not elected officials such as the president, he told the justices.

Some leading legal scholars have scoffed at this, saying the Constitution should be read as a normal person would read it, not as a secret code, as a recent piece of legislation put it.

Mitchell’s argument also drew objections from some judges.

As Sotomayor noted, the argument feels a bit like a gerrymander rule because it would only benefit Trump: Alone among presidents, he was never an appointed federal official, member of Congress or state official before his election.

It seems strange that President Trump is falling through the cracks in a sense, Mitchell admitted. But, he emphasized, that is what the amendment’s language requires.

Is the presidency covered?

Jackson asked a related question: Is the presidency one of the offices the amendment prohibits an insurrectionist from holding?

The opening words of Section 3 list the specific offices from which an insurgent would be barred, she noted. It includes senator, representative and member of the Electoral College, but never mentions the president. Perhaps that was intentional, because the writers of the 14th Amendment were primarily focused on preventing the South from rising again by keeping former Confederates out of Congress and state offices, she said.

The language is ambiguous to say the least, she said. The court could interpret that ambiguous language to allow voters to make their own decisions.

Is it too early?

Mitchell made another argument that seemed to interest some justices: The amendment says insurgents can’t hold any office, but doesn’t say they can’t run for it.

That’s important because Congress could vote to lift the disqualification before Inauguration Day. Excluding Trump from the ballot would essentially undermine Colorado’s right to ask Congress for amnesty, he said.

When the justices meet on Friday to discuss the case behind closed doors, they will see if they can back any of those arguments. They are under pressure to act quickly as the presidential campaign is in full swing. If they can reach a unanimous ruling, it could lower the partisan temperature of an inflamed election year.


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