Bonus 58: The Law and High Politics of Disqualifying President Trump

Whether courts can disqualify presidential candidates under Section 3 of the Fourteenth Amendment is a legal *and political* minefield that the U.S. Supreme Court will now have to navigate

Welcome back to “One First,” a twice-weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. Usually, the Thursday issues is reserved for bonus content for paid subscribers, as opposed to the free content that comes out every Monday. But given the developments of the week, it seemed appropriate to do a second free post—this one focused on Tuesday’s major ruling from the Colorado Supreme Court, which held that former President Trump is disqualified from holding future federal office by Section 3 of the Fourteenth Amendment. As I explain in the post that follows, this decision, whatever its merits, puts the U.S. Supreme Court in an incredibly difficult position—one I suspect justices from across the ideological spectrum were very much hoping to avoid. And it drives home the very real tension that can arise between pure legal analysis and high constitutional politics, especially in these kinds of novel constitutional disputes with enormous practical stakes.

I hope that you’ll consider subscribing (or becoming a paid subscriber) if you aren’t/haven’t already, but either way, read on.

To briefly recap, the Colorado Supreme Court (pictured below) ruled on Tuesday that former President Trump is ineligible to hold any federal office, including the presidency, because he engaged in insurrection through his conduct leading up to, and on, January 6, 2021 (and because Section 3 applies to the presidency, and not just other federal offices). Four of the court’s seven justices joined in the unsigned majority opinion. The three dissents objected in various ways to the majority reaching the substantive questions it decided, but none took specific issue with how those questions were resolved.

Critically (and a bunch of media outlets bungled this, at least initially), the decision does not go into immediate effect. The Colorado Supreme Court stayed its ruling until January 4—and, if Trump seeks review from the U.S. Supreme Court by then, indefinitely until the U.S. Supreme Court resolves Trump’s appeal. Given that the ballot-printing deadline for the primary election in Colorado is January 5 (which is certainly not a coincidence), the stay all-but guarantees that Trump will be on the Republican primary ballot in Colorado. The real question is what happens thereafter.

I also think it is inevitable that the U.S. Supreme Court will step in. The stay just means it won’t have to do anything immediately—and can take up the matter on an expedited, but not insanely compressed, schedule. In other words, the Court could plan to resolve the case by the end of its current term (so, June), and the decision would come in time to resolve whether Trump could appear on the general election ballot in Colorado. (The Court will likely want to move faster; the point is that it has months, not weeks, to do so.) Waiting for the issue to resurface during the general election cycle is just kicking the can down the road, and, to quote from the exceptions to mootness doctrine, this case otherwise would sure seem “capable of repetition, yet evading review.”

As for what the Supreme Court is going to / should do, that’s where I must confess to being profoundly torn. I believe that each of the following seven points are true:

1. President Trump did, in fact, engage in “insurrection” through his efforts, both before and on January 6, to encourage the use of both subterfuge and force to subvert the results of the 2020 presidential election—and to prevent the transition of power to his (duly elected) political opponent.

2. Section 3 of the Fourteenth Amendment applies to the presidency. (Robert E. Lee could not have run for president in 1868.)

3. Section 3 is “self-executing,” meaning that it can be enforced without some prior adjudicative proceeding (like a criminal prosecution). That’s what allowed the House and Senate to refuse to seat putative members elected from southern states who they determined had engaged in insurrection during the Civil War. (And there’s also the last sentence of Section 3, which empowers Congress to “remove” the disability that had—presumably—previously applied.)

4. The full Supreme Court has never decided any of the first three issues.

5. The Supreme Court will not (and, in my view, should not) let a single state supreme court have the last word on the first three issues.

6. There are significant chunks of the American populace that will find it very hard to respect a Supreme Court decision that keeps Trump off of the ballot.

7. There are significant chunks of the American populace that will find it very hard to respect a Supreme Court decision that keeps Trump on the ballot.

Against that backdrop, the Supreme Court is stuck between a rock and a hard place even without regard to how the justices might want to resolve those first three questions. Some of that is a problem of the justices’ own making; a Court with more credibility, and that was seen less as a partisan lightning rod, would presumably have had far more capital to spend even in such highly charged and deeply fraught election cases (capital that, for example, allowed the Supreme Court circa 2000 to decide Bush v. Gore). Some of it is a problem of the Senate’s making, since it would’ve taken just nine more Republican Senators to spare all of us from this mess—by voting to convict (and disqualify) Trump for the same underlying conduct during his second impeachment trial in 2021. Some of it might also be a problem of Jack Smith’s making, since the criminal indictment against former President Trump arising out of January 6 pointedly does not include an “insurrection” charge, a conviction on which would have itself disqualified Trump. And some of it is a problem of a distressingly large subset of the populace’s making—by not viewing Trump’s behavior as the categorical bar it really ought to be to supporting his re-election bid.

But whoever’s fault it is, it’s now the Supreme Court that is left to navigate this swamp. Perhaps there are four votes to affirm the Colorado Supreme Court. Perhaps there are even five. But it’s hard to believe that there are six—or, certainly, nine. Some may view that as a damning indictment of some of the justices; I take the point. But what if it simply reflects that at least some of these legal questions are debatable? That’s where this becomes, at least in part, a conversation about high politics.

I’ve written before about the Court’s 1974 decision in the Watergate tapes cases—United States v. Nixon. There, an 8-0 majority (with then-Justice Rehnquist recused), in an opinion under the name of Chief Justice Warren Burger (Nixon’s hand-picked successor to Earl Warren), ruled that Nixon could not use executive privilege as a shield against complying with a grand jury subpoena seeking tapes from the secret recording system in the White House. (The subsequent release of one of those tapes, the “smoking gun” tape, spelled the end of any political support for Nixon, and helped precipitate his resignation just 16 days after the Court’s decision.) Although there had been some discussion in Nixon’s camp about refusing to comply with an adverse Supreme Court ruling, the fact that it was unanimous, and penned (ostensibly) by Burger himself, poured cold water on the idea.

The Supreme Court’s disposition in Nixon is generally viewed in a positive light, at least as an example of the Court living up to its highest institutional purposes. In a 2016 speech, then-Judge Brett Kavanaugh counted it as one of the “greatest moments in American judicial history.” But the dirty little secret of the ruling itself is that its analysis reflects a series of deeply unsettling (and unpersuasive) compromises. The Court unnecessarily went out of its way to recognize a constitutionally grounded executive privilege (without a ton of analytical support) in a context in which it could have assumed its existence without establishing it, and then held that this privilege had to give way to the prosecution’s (never-before and never-since recognized) interest in having access to potentially inculpatory evidence. It was, as analytical coherence goes, a middling effort at best. (And subsequent reports have suggested, unsurprisingly, that different coalitions of justices—seldom including Burger—were responsible for the different passages.) But nobody much cared, because the Court was unanimous, and it ruled unanimously against Nixon (and, ironically, for the institution of the presidency). One can tell a similar story about Brown and other landmark cases in which the Court traded analytical sophistication for unanimity (or, at least, cross-ideological majorities)—where the message the Court sent was more important than the specific analysis that it provided. These cases are not departures from the “rule of law”; they are the epitome of it—reflecting a nuanced and complicated understanding of exactly what that contestable concept really means.

The upshot of these cases is that there are moments where the Supreme Court is doing more than just “law”; it’s doing high constitutional politics. And those moments tend to involve cases in which the country would best be served by rulings that appeal across the political and/or ideological spectrum. The Court has (badly) flubbed some of these moments—see, e.g., Bush v. Gore, supra. But that only reinforces the consequences for the Court of not taking the high politics of these kinds of cases seriously.

There’s an obvious response to this, and it’s also something I’ve written about before—the idea that the law ought to be first, last, and everything in between. “Let justice be done though the heavens fall.” I get that argument, even if I disagree with it. But what complicates matters even further for the current Court is that this mantra has, in recent times, become the mantra of conservatives—who have defended originalism and other features of their contemporary judicial philosophy on grounds, however persuasive, of ideological purity and apolitical-ness. Here, in the flesh, is a powerful example of a dispute in which it will be impossible for the Court to not be perceived as “political,” and so the focus shifts to whether the Court can issue a decision that avoids being perceived as “partisan.”

If you find any of this discussion remotely persuasive—and I expect (and respect that) many will not—then the question becomes how the current Supreme Court could resolve the Section 3 issue in a way that is not perceived as partisan, and that doesn’t further inflame the toxic politics of the 2024 election cycle and/or further undermine the Court’s credibility. At the risk of sticking my neck out, I think there’s one possible approach here: For a majority of the Court to conclude that President Trump did engage in insurrection, but that there is some impediment (self-execution; Section 3 not applying to the presidency; etc.) that prevents the courts from providing a remedy for his misconduct. Indeed, this is exactly how the trial court had ruled in the Colorado case. (Folks might also recognize the parallel to how Chief Justice Marshall navigated the sticky political wicket in Marbury.)

The point is not that this is the most persuasive legal position (I don’t find the arguments about Section 3 exempting the presidency or not being self-executing especially persuasive as a textual or structural matter); it’s that it’s the closest thing for the Court to a win-win. The Court won’t be keeping Trump off the ballot, but it won’t be endorsing his candidacy, either. If anything, having Republican appointees joining Democratic appointees in holding that Trump did engage in insurrection might go a long way toward persuading those who are capable of being persuaded to cast their vote for someone else. All the while, the Supreme Court would dodge blame for either endorsing Trump’s candidacy or precluding it—a ruling that would make no one perfectly happy, but that would reflect the kind of high political compromise that, in some of its finest moments, the Supreme Court has embraced.

I don’t say any of this by way of a prediction, but rather solely as a means of illustrating two overlapping points: The first is that this is a much messier case for the Supreme Court than I think a lot of folks of all political stripes are appreciating; and the second is that we should be willing to admit that high politics is part of what the Supreme Court does—and that that’s not necessarily an indictment. After all, the Court is but one part of our federal system, and owes responsibility not just to the law as an abstraction, but to those institutions from which its formal and practical power derives. As I wrote back in November, “If the heavens fall in response to the justice done today, how can justice be done tomorrow?”

There might be answers to that question. At the moment, though, I don’t have them.

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We’ll be back Monday (yes, on Christmas) with an abbreviated regular issue about the Court—mostly recapping all of the news from this week (including news perhaps still to come).

Until then, thanks for reading; I hope you have a great weekend!