How do you solve a problem like disqualification? And make no mistake: The effort to disqualify Donald Trump from holding the presidency once again is a problem—for the US Supreme Court.
Whether Trump should be disqualified under Section 3 of the 14th Amendment, which bars certain former officeholders from returning to office if they have “engaged in insurrection or rebellion,” isn’t something the court wants to decide. No matter what it does, its decision will anger millions of Americans—and threaten its plummeting public approval rating, which despite a recent uptick is still underwater (44% approval, 55% disapproval).
Alas, the American people expect the Supreme Court to offer the final word on national legal questions of this importance. So, just as they did in 2000 in Bush v. Gore, the justices will have to step up to the plate and decide the case, even if it causes their popularity to take a hit (which happened after Bush v. Gore).
They will most likely tackle the controversy by hearing Anderson v. Griswold, the Colorado Supreme Court’s Dec. 19 ruling saying Trump is disqualified under the 14th Amendment. It is already before the US Supreme Court, thanks to a certiorari petition filed by the Colorado Republican Party in Colorado Republican State Central Committee v. Anderson.
How should Anderson be decided as a matter of constitutional law? Thousands of pages of judicial opinions and legal scholarship have tackled this question, including many thorny sub-questions, and eminent jurists and legal scholars disagree. It’s a question far above my pay grade as Unfrozen Caveman Legal Pundit.
So I instead offer predictions about how the court will handle Anderson, which the justices will almost certainly hear—because they can’t afford not to hear it.
The decision will be based on what University of Texas law professor Stephen Vladeck calls “constitutional politics,” which is distinct from constitutional law. Constitutional law isn’t irrelevant to constitutional politics, but it’s also not controlling; constitutional politics reflects additional factors like practical consequences, prudential judgments, the reputation and legitimacy of the Supreme Court, and what the justices are willing to spend in terms of political capital.
Now, my predictions. These are nothing more than predictions, and quite possibly wrong. First, the court is likely to keep Trump on the ballot—based on consequentialist concerns, and regardless of the legal merits.
Some 74 million Americans voted for Trump in 2020. How will millions of them react to being told they can’t vote for him again? As Yale law professor Samuel Moyn puts it, “it is not obvious how many would accept a Supreme Court decision that erased Trump’s name from every ballot in the land,” and “rejecting Trump’s candidacy could well invite a repeat of the kind of violence that led to the prohibition on insurrectionists in public life in the first place.” The backlash against the justices from such a ruling is hard to imagine.
To be sure, the current court has ignored practical consequences and public blowback before—most famously in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade. But Dobbs involved constitutional principles the conservative legal movement has cared about for decades; the same isn’t true of Anderson, arising from an obscure constitutional provision that many Americans (or even lawyers) hadn’t heard of until now. Second, I predict the vote won’t be the 6-3, conservative-liberal split that characterizes the court’s most controversial cases. Chief Justice John Roberts will struggle mightily to cobble together a coalition that includes at least one Democratic appointee—and at least one, Justice Elena Kagan, should be sympathetic to that goal.
Both Roberts and Kagan are institutionalists who care deeply about the reputation of the court. Both recognize the damage it would suffer if the outcome in this case is perceived as the product of partisan politics. And given the stakes, it’s conceivable that Justices Sonia Sotomayor or Ketanji Brown Jackson might join the majority as well.
Third, I suspect the court will ultimately offer multiple rationales for keeping Trump on the ballot. Why? For starters, there actually are numerous ways to reject the attempt to disqualify Trump, reflected in the welter of lower-court decisions in his favor. The arguments against disqualifying Trump include, but aren’t limited to, the following: Section 3 doesn’t apply to the presidency, which is what the trial judge in the Colorado case concluded; Section 3 isn’t “self-executing,” i.e., Congress must pass enforcement legislation (which it hasn’t); Trump never “engaged in insurrection or rebellion,” as required by Section 3; the challengers of Trump’s eligibility lack standing to sue; and the case presents a “political question” that can’t be decided by courts.
But there’s another reason I expect the court will take a “choose your own adventure” approach to Anderson. As Yale law professor Akhil Amar explained on his podcast, the 50 states have 50 different legal regimes to govern procedure and substance of federal elections. A narrow ruling in Anderson, based on a single ground, might resolve the issue of Trump’s eligibility in Colorado—but depending on the opinion’s wording and reasoning, the decision might not control a different state with different laws.
To reduce the likelihood of the issue going unresolved in another state—and coming back to the Supreme Court later, even closer to the election—the justices will likely take a belt and suspenders approach in Anderson, offering up a raft of reasons for keeping Trump on the ballot. If they rely on just a single argument, they run the risk of not reaching a final, nationwide resolution of a critically important, time-sensitive issue.
And with efforts to disqualify Trump underway in multiple states—including Maine, where Secretary of State Shenna Bellows disqualified Trump on Dec. 28, and Oregon, whose state high court is now considering the issue—the risk of the issue returning is real. (Trump has appealed Maine’s ruling barring him from the primary ballot and is expected to do the same with Colorado’s.)
So expect Roberts to try for a unified court speaking through one opinion, providing many reasons for not disqualifying Trump. A second-best outcome from his perspective would be multiple opinions offering multiple rationales, in which shifting coalitions of justices form separate majorities for discrete propositions—suboptimal, but something Roberts can probably live with, as long as he can get seven or more justices to keep Trump on the ballot.
When it comes to Section 3 of the 14th Amendment, the Supreme Court has one job: to expeditiously resolve, for the entire nation and with finality, whether Trump can serve again as president. No matter what the justices decide, they should reach a swift, conclusive, universally binding decision—because the fate of our democracy hangs in the balance. The case is Colorado Republican State Central Committee v. Anderson, U.S., No. 23-696. David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.” Read More Exclusive Jurisdiction.