Trump looks to have won big in today's Supreme Court argument.

The Court seems to think, correctly, that Congress, and not individual states or judges, gets the controlling say on the disqualification provisions of the Fourteenth Amendment.

In my last two posts, here and here, I suggested that the US Supreme Court will overturn the Colorado Supreme Court’s judgment that Section 3 of the Fourteenth Amendment disqualifies Donald Trump from running for President, because he engaged in an “insurrection” on January 6, 2021. I argued that the Court would do this because, at bottom, it would conclude that the basics of democratic government require that the disqualification question be resolved by the country’s most authoritative embodiment of electoral process — Congress — not by individual states, and still less by a one-judge margin in one state’s (for now, anyway) supreme court.

I’m feeling pretty good after today’s argument. Of course, I usually feel good when the New York Times’ lead is this glum:

The Supreme Court seemed poised on Thursday to issue a lopsided decision rejecting a challenge to former President Donald J. Trump’s eligibility to hold office again.

Justices across the ideological spectrum expressed skepticism about several aspects of a ruling from the Colorado Supreme Court that Mr. Trump’s conduct in trying to subvert the 2020 race made him ineligible to hold office under a constitutional provision that bars people who have sworn to support the Constitution and then engaged in insurrection.

I did not listen to the argument, which began at 5 a.m. where I am now (my winter home in Hawaii). But its basics are summarized by an astute lawyer, my pal John Meyer (University of Pennsylvania Law School, ‘72). John writes:

The long oral argument of over 2 hours looks as if it went badly for the attorneys defending the Colorado Supreme Court's decision to bar Trump from the Colorado ballot.  The barrage of tough questions came from across the Court with liberal Justices Kagan and Katanji Brown Jackson hitting them hard. I could see an 8-1 decision (Sotomayor looked to me as if she lens toward affirming the Colorado decision).  I  note that the oral argument was an excellent showcase of the Court operating as a court with no apparent evidence of the liberal-conservative split. This looks as if it will come out as a fine example of how the Court should function.

You might recall that Ed Whelan predicted that a Trump win would cut across the usual ideological lines.

I can see the court deciding to overrule the Colorado Supreme Court on several of the arguments against the Colorado decision:

[First,] the  Court my well conclude that the Presidency is not within the scope of the Insurrection Clause of the 14th Amendment, Section 3, because the Presidency is not included in the listing of “offices” in that Section and that the alternative argument that it applies to all Offices under the United States" is not valid, because the Presidency does not technically come within the definition of an "Office under the United States."  

Former Attorney General Michael Mukasey made exactly that argument many weeks ago.

A very strong argument against the Colorado decision was made that Colorado does not have the authority to add to the qualifications for President of the United States, and that, since Section 3 prohibits "Holding" an Office under the United States, but he would not hold the office until inaugurated; Congress can lift the bar on insurrectionists by a 2/3 vote.  Therefore, at the time of his being on the ballot, he must meet only the listed qualifications of Age, Citizenship, and fourteen years of residence within the United States.  This is a very technical argument, but one with considerable force.  

I would add a slight quibble here. I don’t think the argument is technical, exactly. As Justice Jackson pointed out in her questioning, the central purpose of the Fourteenth Amendment was to insure that “the South would not rise again,” and that former Southern office holders who were part of the rebellion would be allowed to resume power only if Congress by a two-thirds majority relieved them of their disqualification. (Personal aside: My great, great grandfather, William Alexander Graham, was a United States Senator from North Carolina before the Civil War; left Congress when the state seceded, then was re-elected after the War but was not seated because North Carolina had not yet met the conditions Congress established for re-admission to the Union).

There was practical concern across the Court that should Colorado be upheld, each State may make a decision on exclusion from the ballot based on different reasons; furthermore, the question was raised what if other States remove another candidate (i.e. Biden) from the ballot.  I think this indicates that, whatever the bases of the ruling, the Court will make sure it applies to any other State that looks to disqualify a candidate from the ballot under the Insurrection Section.  The [Court seemed to understand the] point that ruling Trump off the ballot would deprive the electorate of the opportunity to make their democratic choice in the election. The point was made that if any such ruling was to be made, it would need to be on the basis of clear and incontestable language and that if there is any ambiguity, the Court would need to decide in favor of leaving Trump on the ballot.

That was a central point of my discussion two days ago.

It would be good for the country and the Court if the judgment here were to be unanimous, and the argument today leaves me with a decent degree of optimism that, notwithstanding John’s doubts about Justice Sotomayor, it will be.