Supreme Court to rule tomorrow that Trump is not disqualified from the ballot under the Fourteenth Amendment

The contrary holding of the Colorado Supreme Court will be reversed by a unanimous judgment.

In a hastily announced move, the Supreme Court has said it “may” release one or more opinions tomorrow. This is a coy way of saying that it is, in fact, going to release at least one opinion.

The opinion will be that the Colorado Supreme Court erred in striking Donald Trump from the primary ballot, but its import will make clear that, as the law stands now, no state can strike Trump from either a primary or the general election ballot. The Court’s judgment will be unanimous, and its opinion will be authored by Chief Justice Roberts (although it might be issued per curiam). My guess is that Justice Sotomayor will concur in the judgment, but may write separately to state her own, somewhat differing views. There is a non-trivial possibility that she’ll dissent, but I view that as unlikely.

The rationale of the opinion will be that Section 3 of the Fourteenth Amendment is not self-executing; that Congressional action is needed to implement it; and that absent such action, individual states are not at liberty to freelance their opinions that Trump engaged in an “insurrection.” There might be concurring opinions that, in addition, Trump is not an “officer of the United States” as that language was understood by the Fourteenth Amendment’s authors, and is therefore that neither he nor any other President is within the ambit of the Amendment’s disqualification clause.

I want to clear up one misconception at the outset. It has often been said, mostly by Trump’s dead-end opponents, that a SCOTUS resolution like that is merely an “off ramp” that will be employed to avoid saying what (to the opponents) is obvious, to wit, that Trump is in fact an insurrectionist, but the Court is just too scared, or too partisan, to say so. That view of how this case gets decided is wrong for three reasons.

First, it’s unworthy. It’s basically a smear job, grounded in the view that the Court is cowardly and/or rigged. Anyone who knows the Justices — and I have the good fortune to know one or two — understands that this is exactly the kind of spitball that these people routinely attribute to (ready now?) Donald Trump.

Second, it’s ignorant. People even slightly familiar with how the Supreme Court operates understand that the essentially uniform practice, from the Court’s inception, is for it to decide any given case on the most narrow, politically neutral ground reasonably available. It is a wise, healthy, and long-standing practice for the Court to avoid politically radioactive questions if the issue is capable of resolution without going there. The disqualification question meets that description (which is why the opinion resting on the non-self executing nature of Section 3 will be unanimous or nearly unanimous).

Third, it’s false. The argument for that theory is extremely strong on the merits. In order to explain why, I have to go law professor on you (sorry!). In doing that, I will rely on and extensively quote from one of the amicus (friend of the Court) briefs filed by the Attorneys General of not fewer than 25 states (and the state legislatures of two others, Arizona and North Carolina). I had no hand in writing that brief, but, as I’ll explain momentarily, I know the brief’s principal author.

The brief is here. As with most good briefs, it lays it out right up front in unambiguous language:

Occasionally, a case comes along that threatens to upend our constitutional order. Perhaps a decision erases Congress’s role in making some essential decision. Or maybe a court has construed our Constitution in a way that endangers the President’s ability to perform some critical work. Or perhaps a decision invites chaos in our elections, undermining the ability of voters to pick those who lead them. Or maybe a case thrusts courts into places where they don’t belong. Any one of these outcomes—standing alone—would be unacceptable.

This case presents not just one of those troubling outcomes, but all four. In declaring that former President Donald Trump is ineligible to run for President in the coming election, the Colorado Supreme Court has effectively reordered the roles of all the relevant players in presidential elections. Section 3 of the Fourteenth Amendment requires Congress to act before an individual can be disqualified as an insurrectionist. But Colorado chose to act on its own. The same section was proposed and ratified against a legal and historical backdrop where Congress and the President had decided what acts rise to that level. But here again, Colorado chose to take that task up for itself. And because of these choices, voters across the country now face serious uncertainty and trouble in picking their next president.

The Court must now act to fix the four-fold damage the Colorado decision has done. Ultimately, the “Constitution’s design … leave[s] the selection of the President to the people, through their legislatures, and to the political sphere.” Bush v. Gore, 531 U.S. 98, 111 (2000) (per curiam). Yet the Colorado court’s decision ignores that design. And by doing so, the decision will lead many to question whether our elections are genuine reflections of the national will or base political games won through gamesmanship and lawfare. “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam). The Court can restore order and integrity here. The Court can and should reverse.

This last point is crucial. Some of Trump’s opponents have claimed that a ruling in his favor will be a product of exactly, and only, the “consequentialist” thinking conservatives have condemned in other contexts. For example, Trump’s opponents point out, conservatives have criticized the attack on Dobbs that “Oh, now, 12 year-old girls who’ve been raped will be forced to give birth” as being only a claim about the (alleged) awful consequences of Dobbs, but not an argument about the legal merit of the question whether the United States Constitution does or does not contain a right to abortion — which was the only question before the Dobbs Court. The anti-Trump people are claiming now that the argument against Colorado’s ruling is an echo of exactly that kind of thinking: That the anti-democratic outcropping of knocking a major candidate off the ballot may exist, sure, but that is merely a consequence of the Colorado ruling, and not relevant to the legal question whether the Fourteenth Amendment, fairly read, does or does not require disqualification of an “insurrectionist” no matter how popular he may be with a big part of the electorate. One aspect of the brilliance of the amicus brief I’ve quoted is that it shows that reversal of the Colorado ruling is the correct legal, and not merely a wholesome consequentialist, reading of Section 3. It does this in the way a smart and honest lawyer would, to wit, by looking at all the language in that Section and the historical context that gave rise to it.

It is not Trump, but Trump’s opponents, who want to use the Supreme Court as a political tool — and a powerful tool at that, being, ya know, the Supreme Court — to declare that Trump is an “insurrectionist,” and thus not merely disqualified from being President, but unworthy of the Office as well. That would make a great line in a campaign ad (which is precisely what they’re thinking, if they were of a mind to permit a campaign, that is).

Before this post gets too long to be tolerable, I’ll just very briefly summarize the gist of the non-self executing argument: The text of the Fourteenth Amendment, read as a whole, anticipates that Congress, and not the states without Congressional direction, will decide whether a particular person is qualified to hold office under Section 3 (or at least determine the process for making that decision). The structure of the Constitution, its relevant history, and authority from the Court itself confirm as much. Congress has not enacted any enabling legislation that would apply here. Yet the Colorado court went ahead and acted on its own, contradicting the Amendment’s language and grounding. See the brief at pp. 3-7.

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I promised to say a word about the brief’s author. It’s a very savvy lawyer named James A. Barta, who, at age 34, became Solicitor General of Indiana last year. James is an Order of Coif graduate of Georgetown Law School whom I was fortunate enough to have as a student ten years ago. It was a full 15 minutes into the class before I understood that he was both smarter and more widely read than I am. Having someone like that in your class is what, as a teacher, you dream about.