Manuel Balce Ceneta/AP Photo
Bill Christeson holds a banner in front of the Supreme Court, February 8, 2024, in Washington.
There were always three questions involved in the case that the Supreme Court heard today. The first was whether Donald Trump had, in fact, instigated an insurrection. The second was whether he should be forbidden from holding the presidency (or any other office) under Section 3 of the 14th Amendment. The third was whether a state—in this case, Colorado—could bar Trump from the ballot, citing the first and second cases as the reason for barring him.
That gave the Court three off-ramps from having to chonk Trump off this year’s presidential ballot, and any one of them would be sufficient. The justices’ response to the oral arguments presented today made clear that there would be no chonking. The three Democratic-appointed justices—Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson—seriously questioned the third rationale—that is, whether a state could block a presidential candidate from appearing on the ballot, which, they suggested, could lead to chaotic election-year divergences from state to state, and could set a precedent for disqualifications that could be a lot more arbitrary than this one.
The Republican-appointed justices also raised that objection, but went further in suggesting that Section 3 didn’t contain the word “president” and thus, though it does specify officials who’ve sworn an oath to the Constitution, couldn’t be invoked against Trump. They were clearly indifferent to the fact that this was the kind of argument that led Shakespeare to write, “The first thing we do, let’s kill all the lawyers.”
What I suspect will emerge from this mishmash is a ruling that’s either unanimous or close to it, that will nullify Colorado’s decision. My guess also is that there may be separate concurring opinions, some (from the Democrats) saying that the first two cases remain undecided and thereby create the possibility that Trump could still be blocked from taking office under Section 3, and some from some of the Republicans arguing that Section 3 just doesn’t apply to presidents.
What I suspect will also follow from this is that the Court will shortly uphold the unanimous appellate court ruling this week that Trump has no immunity from prosecution for instigating the January 6th insurrection. (They may, in fact, even decline to hear Trump’s appeal of that ruling.) That the Court has had the good fortune to have both these cases before it and thus could split the difference is doubtless a relief to Chief Justice Roberts, who wants nothing so much as to help restore the Court’s reputation for balance, if such restoration is even possible.
If Trump’s prosecution for January 6th goes forward in a timely fashion, and if he’s convicted, can someone go back to the Court making cases one and two? Clearly, the Court’s hard right—Thomas, Alito, Gorsuch—will want to squelch that possibility in rejecting the case they heard today. The timing will also make that difficult: By then, Trump may well be the Republicans’ official nominee.
Conundrums await, with disaster always a clear possibility.
