This article is the second in a five-part series called “Protecting the Election.” As former President Donald Trump and many of his allies refuse to concede his defeat in the 2020 election, this MSNBC Daily series brings election law and policy experts to explore the many threats to certifying election results at both the state and national levels.
With former President Donald Trump on the precipice of possibly becoming president again, let’s recall that he’s on the 2024 ballot thanks partly to the Supreme Court.
I’m not talking about the ruling granting him broad criminal immunity. Though the Roberts Court’s handling of that appeal helped Trump push off a trial in the federal election interference case — possibly forever, if he wins the election and deploys his reacquired presidential power to crush it.
I’m talking about another Jan. 6-related appeal from the last Supreme Court term, one that more directly positioned the Republican to take office again: Trump v. Anderson.
It was there that the justices reversed the Colorado Supreme Court’s decision to keep the former president from the ballot. The case was technically about one state during the primary process, but the U.S. Supreme Court’s ruling effectively scrapped nationwide efforts to enforce the constitutional provision barring oath-breaking insurrectionists from office.
As a reminder, here’s what that post-Civil War provision, Section 3 of the 14th Amendment, says:
No person shall be 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, who, having previously taken an oath, 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, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
In a lengthy December decision, a majority of Colorado’s top court cited that language in agreeing that Trump “engaged in” the Jan. 6 insurrection after having sworn to support the Constitution as president.
“We are mindful of the magnitude and weight of the questions now before us,” the state court said Dec. 19, adding: “We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.” The public reaction included threats against the Colorado judges.
Maine’s secretary of state reached the same conclusion later that month (and was likewise threatened), raising the stakes for the high court’s inevitable intervention.
The justices seemingly saw a Trump-friendly ruling as inevitable, too. During the Feb. 8 hearing in Washington, Chief Justice John Roberts worried about the “plain consequences” of permitting states like Colorado to disqualify insurrectionist candidates. He mused:
In very quick order, I would expect … a goodly number of states will say, ‘Whoever the Democratic candidate is, you’re off the ballot,’ and others, for the Republican candidate, ‘You’re off the ballot,’ and it will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.
That could be an understandable reaction from a random person not versed in the law or the facts. But this is the chief justice of the United States. For one thing, casual observers know that a handful of states basically do decide elections in our skewed Electoral College system. And more to the point, if any Democratic insurrectionists are blocked from the ballot, too, then that’s their problem. Even if Roberts’ stated concern was well-founded, it didn’t grapple with the law.
But the consequentialist view would prevail. It was just a matter of the court figuring out how to legally accomplish the practical goal of keeping Trump on the ballot. The decision came just ahead of the Super Tuesday primary voting day in March. It was an unsigned “per curiam” ruling, though it was actually authored by Roberts, according to a New York Times report that wasn’t confirmed by NBC News or MSNBC.
While the justices were unanimous on the bottom line that states couldn’t disqualify presidential candidates, the Times reported on the internal machinations: four of the conservatives were pushing to go beyond that and rule that the Constitution’s prohibition would require congressional action to take effect. Such a decision would provide greater protection for Mr. Trump: To prevent him from taking office if he won re-election, Congress would have to vote to enforce the insurrectionist ban.
Roberts joined those four Republican appointees in the opinion that sparked two separate ones, both of which highlighted the lack of unanimity on the court. One of them came from the three Democratic appointees. Though styled a concurrence “in the judgment” (meaning on the bottom line), it reads at points more like a straight-up dissent, accusing the majority of needlessly resolving “novel constitutional questions to insulate this Court and petitioner [Trump] from future controversy.” The other separate opinion came from Trump appointee Amy Coney Barrett. Adding her own bizarre thoughts to the affair, she agreed with the Democratic appointees that the majority went too far but nonetheless chided the trio for “stridency” in how it expressed disagreement. Getting back to the substance of the matter, consider the view of conservative law professor William Baude. He previously clerked for Roberts and co-authored key scholarship before the ruling explaining why Trump is disqualified and, intriguingly, maintained in a post-ruling piece that Trump is still disqualified. He wrote in an op-ed after the decision that the Supreme Court: swiftly overruled the [Colorado] decision without even confronting the question of whether Mr. Trump had engaged in an insurrection or was therefore disqualified from office. Instead it concocted an argument, not raised by any of the parties, that states specifically lack the power to consider this part of the Constitution in making ballot access decisions.
Trump v. Anderson’s holding lacked any real basis in text and history and also is at odds with the basic structure of the Electoral College, in which states have primary authority to decide how their slates of electors are chosen. The ruling’s real function was to let the court reverse the Colorado Supreme Court and avoid the political firestorm that might have ensued, without requiring the court to take sides on what happened on Jan. 6. Indeed, the available evidence — the hearing, the decision, the investigative reporting — suggests the court started from the conclusion that Trump just had to stay on the ballot and then attempted to reason backward from there. And no doubt, it’s probably an understatement that a “political firestorm” would’ve ensued had the court held Trump to the Constitution. Look no further than the threats against judges and election officials who dared to rule against him on this issue and others. Look no further than the Trump-backed violence of Jan. 6. So, what about the “plain consequences,” to use the chief justice’s concerned phrase, of an oath-breaking insurrectionist potentially running the country again, this time knowing he’d have broad criminal immunity heading into a second term? That consequence apparently was not “daunting” enough to move this court. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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