Meanwhile, the Supreme Court briefs have poured in. Most retread familiar legal ground, but an amicus brief filed Thursday by election law scholars Edward B. Foley and Richard L. Hasen, along with election lawyer Benjamin L. Ginsberg, makes a distinctive appeal: Whatever you do, the trio urges the justices, don’t punt on the question of Trump’s eligibility. Either rule that he is qualified for the presidency or rule that he is disqualified from it, full stop — don’t reverse the Colorado decision on “procedural or jurisdictional grounds.”
Otherwise, if Trump wins the election in November, Democrats in Congress could try to block the certification of his electoral votes next January, as some Republicans did for President Biden’s in 2021. That would risk “catastrophic political instability,” the brief plausibly warns. But it overestimates the Supreme Court’s ability to head off such instability. And it understates the risk from more judicial entanglement in the election than necessary. Deciding that insurrection is a question for Congress might actually be the most statesmanlike solution available to the justices.
Some background: Section 3 of the 14th Amendment disqualifies certain officeholders who “engaged in insurrection” from holding certain offices in the future. Colorado says this applies to Trump because of the Jan. 6, 2021, riot. The Foley brief urges the Supreme Court to pronounce whether Colorado is right or wrong on the merits. But there’s a separate, procedural question: Is the disqualification provision enforceable without further guidance from Congress? The 14th Amendment says Congress can enforce it “by appropriate legislation.” Congress has passed legislation disqualifying people criminally convicted of insurrection, but Trump hasn’t been charged with that crime.
The justices could thus order Trump restored to Colorado’s ballot because no congressionally authorized procedure was followed to disqualify him. A ruling along those lines would be agnostic on whether Jan. 6 was an insurrection. But it would stop state-level disqualifications of Trump and allow the 2024 election process to go ahead undisturbed.
It’s true that this wouldn’t end the matter if Trump wins in November. But Democrats in Congress could object to certifying a Trump victory no matter what the Supreme Court says. Let’s say the justices rule this spring in a 6-3 partisan split that Trump did not engage in insurrection in 2021. Would that change the minds of congressional Democrats, all of whom voted to impeach and convict Trump for insurrection in 2021?
Unlikely. Today, 81 percent of Democrats believe that Trump is disqualified from office, according to one poll. Some Democratic representatives would surely press that case after the election, and they could plausibly claim that congressional interpretation of the 14th Amendment supersedes the Supreme Court’s.
In any case, such turbulence in Congress, while distracting, would most likely resolve itself. It’s unlikely that Democrats would have enough votes to block Trump’s certification and create genuine ambiguity about “who is entitled to act as President and commander-in-chief of the Armed Forces starting at noon on January 20,” as the Foley brief puts it. Congress can throw out electoral votes, the brief notes, only “if a procedurally proper objection is sustained by both the House and the Senate.” If Republicans control even one house of Congress, Democratic objections to Trump’s election would be guaranteed to fail.
The chance that Trump will win the presidency while Democrats win a majority in both houses is small. Republican Senate candidates tend to run ahead of Trump in swing states, and the last time voters elected a president of one party and a Senate and House controlled by the opposing party was in the election of Bill Clinton in 1996.
Even if Democrats did somehow sweep Congress despite a Trump victory in the electoral college, their margin would be narrow, and it’s unlikely that all Democrats in Congress would sanction reversing the voters’ presidential decision. Rep. Jared Golden (D-Maine), for example, disagreed with the Maine secretary of state’s recent decision to remove Trump from the ballot. In other words, it might be rocky, but congressional procedures are probably adequate to handle the 2025 presidential transition without a direct Supreme Court pronouncement on Trump’s culpability, or lack of culpability, for insurrection.
And such a pronouncement would come at a high cost to the court. If the justices cleared Trump of insurrection, they would be essentially second-guessing Congress’s impeachment of the former president, who would use the opinion as an election-season talking point. The Supreme Court is already under liberal assault; a decision seen as vindicating Trump would turbocharge the attacks and increase the risk of a constitutional crisis under a Democratic president down the line. If the justices affirmed the Colorado decision, they would devastate the court’s standing within the GOP, which would see its voters stripped of the right to vote for their favored candidate in an unprecedented way.
The country is at a point where states are disqualifying a major-party candidate under the Constitution’s insurrection clause. That itself shows that instability is a real risk. But there is no procedural end run around this problem, which is fundamentally one of polarization and a loss of political legitimacy. The best course for the Supreme Court in those circumstances is probably to protect its own institutional interests and hope that the elected branches can heal themselves.