The Supreme Court just delivered a rare self
The Supreme Court’s unsigned majority opinion in Trump v. Anderson, ending Colorado’s attempt to disqualify Donald Trump from appearing on the ballot as an insurrectionist, is a remarkable self-own. It simultaneously turned what could have been a short, sweet (if weakly reasoned) unanimous holding about states not having the individual power to disqualify presidential candidates from their ballots into a bitter 5–4 dispute over the scope of Congress’ power to disqualify candidates. And if the majority felt that it needed to take the heat from the court’s liberals and from Justice Amy Coney Barrett because it wanted to provide clarity that Congress cannot try to disqualify Trump if he appears to be reelected when Congress counts Electoral College votes on Jan. 6, 2025, it made a mess. Leading scholars and lawyers reading the opinion already disagree over what Congress can do and how, keeping the door open to potential chaos. It’s a rare miss by a usually strategic and savvy Chief Justice John Roberts.
The legal question at issue is as arcane as it is central to democracy. After the Civil War, Congress passed three amendments to the Constitution, among them the 14thAmendment. That amendment most notably protects individuals when states deprive people of their rights to due process or equal protection. But it also includes a provision, in Section 3, aimed at those who were part of the Confederacy during the war, disqualifying from future office those who had formerly pledged to uphold the Constitution but who later engaged in insurrection.
AdvertisementRelying on this part of the 14thAmendment, some Trump opponents have gone state by state, arguing that Trump cannot appear on the ballot because he’s disqualified for his conduct in trying to overturn the results of the 2020 election. They lost in most places, but they won in Colorado and got Trump kicked off the ballot in that state. The U.S. Supreme Court stepped in, and in a short opinion issued on Monday (a per curiam, with no one justice listed as author), it held that states cannot enforce Section 3 when it comes to federal offices. Among other things, the court held that this would create “chaos” through a “patchwork” of state approaches to whom and how to disqualify. (Never mind that states already have a patchwork of rules, for example dealing with how third-party candidates can get on the ballot.)
Advertisement Advertisement Advertisement AdvertisementDespite the unanimity on this point, the court included a five-paragraph Part II.A of the opinion, a section that generated tremendous controversy and to which Barrett and the three liberal justices objected. In those paragraphs—backed by Roberts, as well as Justices Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and Clarence Thomas—the court explained that Section 3 empowers Congress, and apparently not other actors, to “prescribe” how disqualification is to work, at least as to federal officers. When Congress wishes to disqualify, it must aim at “particular individuals.” When Congress makes these determinations, “proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable,” the majority wrote, quoting an 1869 opinion for a Supreme Court justice sitting as a circuit justice (and not an opinion of the Supreme Court).
AdvertisementAlthough the majority called Congress’ power “critical” when it comes to Section 3, without explaining what that means, it made the Supreme Court the final arbiter of whether someone can be disqualified. Congressional determinations of disqualification are “subject of course to judicial review to pass ‘appropriate legislation’ to ‘enforce’ the Fourteenth Amendment.” And later, in a part of the opinion joined by Barrett but objected to by the liberals, the court reiterated that any legislation passed by Congress to enforce Section 3 must be “tailored.” Legislation must reflect “congruence and proportionality” between means and ends, code words the court has used elsewhere to strike down congressional legislation.
AdvertisementThe majority did not explain how far its holding goes. Is congressional legislation always required to enforce Section 3? There’s not a mention of the elephant in the room, which is what happens on Jan. 6, 2025, when Congress counts electoral votes. Can Democrats opt to not count votes for Trump on the grounds that he’s an insurrectionist? Would that require a prior statute? Or is the power to disqualify when counting Electoral College votes something within Congress’ powers under the 12thAmendment, separate from the rules on statutes? If it’s under the 12thAmendment, is it not subject to judicial review? Could Congress by statute otherwise disqualify Trump after the election?
Advertisement AdvertisementThe court did not answer these questions, and experts and members of Congress are already divided on them. It’s not even clear whether statutes already on the books are currently enforceable—including 18 U.S.C. §2383, which criminalizes insurrections and includes as a penalty prohibition from federal office—with different analysts reaching different conclusions. In terms of clues on the timing question, the five-justice majority did include this less-than-definitive section near the end:
Advertisement Advertisement AdvertisementAn 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.
Would Congress disqualifying Trump under its 12thAmendment powers to count Electoral College votes be “Section 3 enforcement … attempted after the Nation has voted”? Is that forbidden?
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Read MoreThe liberal justices in their separate opinion wrote that the majority decided “novel constitutional questions to insulate this Court and [Trump] from further controversy.” They added that 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.” The liberals added that the majority attempted “to insulate all alleged insurrectionists from future challenges to their holding federal office.”
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The whole back-and-forth is perplexing. Were the liberals overreading what the majority had done in Part II.A? More likely, this opinion was rushed and there were last-minute changes. (This idea is supported by the metadata’s revealing some things, as Mark Joseph Stern explained, such as that the liberal concurrence started as a Justice Sonia Sotomayor dissent.) Maybe Part II.A said more in draft, then that was removed. Maybe after the removal of some language, when the liberals failed to tone down their opinion, this provoked Barrett to write separately to attack the “stridency” of the liberal justices. Given this “politically charged” issue in the “volatile season” of the election, Barrett wrote, “the Court should turn the national temperature down, not up.”
Advertisement Advertisement AdvertisementIf what the chief justice and the other justices in the majority were trying to do was to impose some finality on the Trump disqualification question and to avoid “chaos,” as they said, they left open a huge question mark about Jan. 6. And in doing so, the majority was the one that turned the national temperature up. It will remain up.
None of this bodes well for unanimity in the Trump immunity case, which is currently being slow-walked by the Supreme Court, or the rest of the election-related litigation that is sure to hit the court between now and the election—or potentially in the months afterward.
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