Our deeply divided Supreme Court looks poised to speak with one voice on the most important election-related case to hit the court’s docket since its 2000 decision in Bush v. Gore. But its decision may do little more than kick the proverbial can down the road until after the 2024 election.
Thursday morning the Supreme Court heard oral arguments in a case that will decide whether former President Donald Trump is ineligible for the presidency because of his involvement in the deadly attack on our nation’s capital on Jan. 6, 2021. The case centers on a matter of first impression for the Supreme Court — whether Section 3 of the 14th Amendment prohibits a former president who allegedly engaged in insurrection from once again being president.
The justices focused on both the legal and practical reasons why states may lack power to determine whether federal candidates are barred from the ballot under Section 3 of the 14th Amendment.
The specific wording of the Constitution matters here. Section 3 of the 14th Amendment prohibits a person who previously served “as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State” from serving as “a senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State,” if that person engaged in insurrection.
The 14th Amendment was ratified in 1868, in the wake of the Civil War. Section 3 was originally designed to prevent those who served in office and then fought for the Confederacy from once again holding public office. The idea is that you don’t get to try to destroy our government from within and then later serve as a member of our government. The question is whether this old prohibition applies to Trump.
Over more than two hours of oral arguments, the justices coalesced around two primary reasons Trump should remain on the ballot, and they are both highly technical.
The first legal route for the justices might involve whether or not Section 3 applies to someone who is a former president. Section 3 applies to, among other people, a former federal “officer.” Justice Ketanji Brown Jackson was the first of the justices to argue that a president is not a federal “officer.” This would mean that the disqualification in Section 3 does not attach to former presidents. Taken to its logical conclusion, this does mean a former president could engage in an insurrection and once again run for the presidency.
But the second legal off-ramp might be the one the court is more likely to take. The arguments were dominated by the justices’ worry about unleashing chaos upon our electoral system by giving states the power to kick federal candidates off the ballot. The justices focused on both the legal and practical reasons states may lack power to determine whether federal candidates are barred from the ballot under Section 3 of the 14th Amendment. A number of the justices expressed concern about creating a situation in which states make varying decisions about whether a presidential candidate is eligible for office and the havoc that such a patchwork of decisions would create for voters. One reason states may lack the power to act is that, under Section 3, Congress must first expressly give states the power and specific guidance regarding disqualification. The justices spent a good deal of time on this argument, and it presents some real appeal to the court. It would essentially allow the court to say, “Not it, go to Congress.” Related to this is the question of whether Colorado, in fact, acted prematurely in concluding that Trump is ineligible for office. While Section 3 adds qualification requirements for certain government offices (meaning certain former officials cannot engage in an insurrection and then seek to be officials again), it is unlike other provisions of the Constitution that do so. For instance, Article II provides that a president must be a natural born citizen who is at least 35 years old and has been a resident of this country for at least 14 years. But Section 3 provides that even someone who is otherwise disqualified under Section 3 can serve in office if two-thirds of both the House and the Senate vote to “remove such disability.” Trump’s attorneys argued that the Colorado Supreme Court jumped the gun in removing Trump from the ballot because Congress could later vote that he is, in fact, free to serve as president again. If the court coalesces around the idea that Colorado lacked the power to act and boot Trump from the state ballot, this could simply push difficult questions to a different branch of government and delay a battle over those questions. Let’s imagine that Trump wins not just the Republican nomination but also the Electoral College vote. In that case, it would be up to the political branches to determine whether Trump is, in fact, ineligible for the presidency. The Supreme Court, in other words, may be unified in saving the more politically fraught consequences of Trump’s eligibility for a later day.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
