The Supreme Court is not going to let Colorado, or any other state, remove Donald Trump from the ballot in 2024. That’s the upshot of Thursday’s arguments in Trump v. Anderson, the blockbuster case contesting the former president’s constitutional ability to run for office. A clear majority of justices expressed overwhelming skepticism toward the plaintiffs’ claim that Trump is disqualified under Section 3 of the 14th Amendment because he “engaged in insurrection.” The only real question is what rationale the court will use to reject that theory—though one emerged as a probable consensus: Justices across the ideological spectrum suggested that individual states cannot enforce Section 3 against federal candidates, at least not without congressional approval.
Different justices may concur with additional rationales. Justice Sonia Sotomayor might pen a lone dissent. But all in all, this goose is cooked. The Supreme Court’s last remaining challenge is to put meat on the bones of the justification it lands on, and that task may prove harder than it looks. The notion that individual states can’t take unilateral action to strip federal candidates from the ballot has immense practical appeal, and arguably aligns with broader constitutional principles. But it is not what Section 3 says on its face, nor is it clearly borne out by the original meaning of the amendment. Many of the justices’ questions on Thursday amounted to policy arguments thinly cloaked in the language of textualism and originalism. With some exceptions, though, these questions began from the premise that states can’t possibly be allowed to take Trump off the ballot, and worked backward from there. That’s not an illegitimate way to do law. But it is not how this Supreme Court claims to do law.
Anderson has its roots in the events of Jan. 6, 2021, when Trump allegedly incited an insurrection to stop Congress from counting electoral votes, thereby certifying his defeat. In 2023 a group of Colorado voters sued in state court to block the former president from appearing on the ballot in the upcoming election. They cited the 14th Amendment’s Section 3, which was ratified in 1868 to prevent ex-Confederates from returning to office. As relevant here, Section 3 states that former officeholders are ineligible to “hold any office, civil or military, under the United States,” if they have previously “engaged in insurrection.” Only Congress can remove this “disability” by a two-thirds vote in each house.
In December, the Colorado Supreme Court sided with these plaintiffs by a 4–3 vote, ordering Trump off the ballot. The court made four central claims: First, it held that the president is an “officer” subject to the 14th Amendment’s disqualification clause. Second, it held that Trump “engaged in insurrection” as defined by the amendment. Third, it held that the amendment was “self-executing,” meaning that states could enforce it without congressional action. Fourth, it held that the state judiciary afforded Trump due process throughout the proceedings. Taken together, the court held, these conclusions prevented Trump from running in the primary and from competing for Colorado’s 10 electoral votes come November.
Naturally, the former president appealed, and the U.S. Supreme Court took up the dispute on an expedited schedule, culminating in Thursday’s session (which interrupted the justices’ cherished February break, a sign of the case’s urgency). Since the Colorado Supreme Court’s decision, scholars and advocates have come forth with a remarkable amount of persuasive evidence indicating that the plain text and original public meaning of the 14th Amendment really do empower states to knock Trump out of the contest. And during the first part of Thursday’s arguments, it sounded as if the justices were genuinely open to this possibility. Even some conservatives, like Chief Justice John Roberts, evinced real doubt toward the theories proffered by Trump’s lawyer Jonathan Mitchell. It was, at first, a very bad morning for the former president.
Then the plaintiffs’ lawyer approached the lectern, and it all fell apart. Whatever resistance the justices showed to Mitchell early on was probably a result of his atrocious lawyering; Mitchell inexplicably centered his weakest arguments and, on Thursday, conceded important points to the other side over and over again. An openly misogynistic anti-abortion crusader, Mitchell is most notorious for drafting Texas’ vigilante abortion ban—and for, more recently, helping an abusive husband sue his ex-wife for getting an abortion in an attempt to punish her for obtaining a divorce. His appeal to Trump is obvious, but his performance shows that hiring a lawyer based on their record of cruelty and chauvinism may not produce the best results at SCOTUS.
It didn’t much matter, though, because the justices decided to save Trump (and Mitchell) anyway. Jason C. Murray, who represented the plaintiffs, barely got a word out before Justice Clarence Thomas leaped in. “I understand the states controlling state elections and state positions,” the justice told Murray. “What we are talking about here are national candidates.” Have any states, he wondered, ever disqualified national candidates before? (They have not, Murray conceded.) The chief justice then joined in. “The whole point of the 14th Amendment was to restrict state power,” he said. “Wouldn’t that be the last place that you’d look for authorization for the states, including Confederate states, to enforce … the presidential election process? That seems to be a position that is at war with the whole thrust of the 14th Amendment and very ahistorical.” Justice Brett Kavanaugh piled on, telling Murray that “there’s no historical evidence to support the theory of Section 3” that he put forth. Kavanaugh then listed a series of questions raised by this case. “The questions are: What does [insurrection] mean? How do you define it? Who decides whether someone engaged in it? What processes … are appropriate for figuring out whether someone did engage in that?”
To Kavanaugh, the answer is simple: “Congress has the primary role here,” not the states. For support, the justice cited “Griffin’s Case” as definitive proof. Griffin’s Case was written by Chief Justice Salmon Chase in 1869—but only in Salmon’s capacity as circuit judge, so it is not binding precedent. (Individual justices used to “ride circuit” around the country, serving as one-man appeals courts.) Salmon’s basic proposition was that Section 3 is not “self-executing,” but rather places the question of disqualification solely in the hands of Congress. His opinion was openly results-oriented: Salmon believed in broad amnesty for ex-Confederates, and limited Section 3 on the grounds that a broader reading would prove “inconvenient.” His opinion effectively rejected the plain meaning of the amendment in favor of a Confederate-friendly cop-out. Nevertheless, Kavanaugh said Griffin’s Case was “highly probative” and “relevant to trying to figure out what the original public meaning of Section 3” could be. The justice, as he is wont to do, made this same point over and over again for the next hour.
In fairness to Kavanaugh, Justice Elena Kagan raised a parallel argument embedded not in pseudo-history but in “broader principles” of democracy. “One state’s decision to take a candidate off the ballot affects everybody else’s rights,” she told Murray. States have a lot of power, but “there are certain national questions where states are not the repository of authority,” the justice said. Looking at this dispute, she went on, the question arises: “What’s a state doing deciding who other citizens get to vote for for president?”
It’s a strong argument from those “broader principles” that Kagan cited. And it was made, with less force and more grievance, by Justice Samuel Alito during arguments. The difference is that Kagan has spent her judicial career fiercely defending citizens’ right to vote against state abridgment, while her conservative colleagues have zealously promoted states’ prerogative to strip citizens of suffrage by any means necessary. There’s a twisted irony in hearing justices like Alito and Roberts—who have actively prevented Congress from combating state voter suppression—balk at the notion that states could stop their residents from voting for an insurrectionist.
If there was any surprise on Thursday, it was Justice Ketanji Brown Jackson’s embrace of Mitchell’s main theory that the president is not an “officer” of the United States, so Section 3 does not apply to him at all. Jackson pointed out, correctly, that the amendment lists specific positions (like senator) from which insurrectionists are disqualified and does not mention the president. “Why is that?” she asked Murray. “And if there’s an ambiguity, why would we construe it … against democracy?” Jackson suggested that the amendment was “about preventing the South from rising again” and was intended to prevent Confederates from prevailing in “local elections” involving “local concerns.” Doesn’t it seem, she mused, that the Framers excluded the presidency because of the “troubling potential disuniformity of having different states enforce Section 3 with respect of presidential elections”?
To be clear, Jackson’s argument mirrored that of professor Lawrence Lessig in Slate, not the bizarre fringe hypothesis about a secret constitutional code distinguishing office and officers. (Only Justice Neil Gorsuch poked at that idea, and even then with little enthusiasm.) Jackson’s fundamental concern mirrored that of Roberts and Kagan: Letting states disqualify federal candidates would create a patchwork of 50 wildly different regimes, handing a few swing states the authority to decide each presidential election. Sotomayor eventually gestured toward this fear as well, though she sounded genuinely torn, more so than her left-leaning colleagues. She pummeled Mitchell over his reliance on Griffin’s Case, his departure from the constitutional text, and his distortions of history. If any justice dissents, it will be Sotomayor. Yet she, too, can be a team player when called upon. And it is easy to envision the justice signing on to an opinion for Trump to create the impression of consensus.
What will that opinion look like? We barely have to speculate, because the chief justice essentially laid it out in a question to Murray. In a long, scolding statement, Roberts decried the “pretty daunting consequences” of Murray’s position, describing an escalating series of retaliatory disqualifications by red and blue states alike. Isn’t that possibility enough, Roberts asked, to justify siding with Trump?
We know the answer already. And Roberts’ fears may well be valid. But consequence-based judging is not how this Supreme Court purports to interpret the law. The conservative justices have consistently assured us that they look only to constitutional text and history, without regard to the fallout. They do not care if their decisions result in the avoidable loss of innocent human life: A judge’s only job is to apply what the Constitution commands. In Anderson, a great deal of historical evidence suggests that the Constitution prohibits a second Trump term. Yet almost all of the justices—including those conservatives who normally use text and history as a shield and sword—sounded spooked by the repercussions of such a ruling, and leaned toward reading the 14th Amendment differently to avoid sparking a political crisis. That approach may or may not be good for American democracy. But it is certainly not how this Supreme Court says the law is supposed to work.