Thursday’s arguments at the Supreme Court about whether former President Donald Trump is disqualified from the presidency were extraordinary. The grave import of the case was on full display as the justices searched for a way to resolve its immense tensions in the least disruptive way possible. Most commentators expected that the petitioners would be shellacked by the justices. But they fared well in parrying the court’s tough inquiries. By the end of the argument, though, a majority of justices seem to have coalesced around a rough rationale of a ruling for Trump: that this is a national problem that requires action at the federal level, not a patchwork of varying state decisions.
Yet while the court seems poised to rule in Trump’s favor in this case, the petitioners — the Colorado voters represented by Citizens for Responsibility and Ethics in Washington (CREW) — exceeded expectations. Hanging over the proceedings was the extraordinary issue of whether Trump “engaged in insurrection,” thus violating the oath he took to support the Constitution. Section 3 of the 14th Amendment, ratified in the aftermath of the Civil War, disqualifies insurrectionist former “officers of the United States” from returning to office. The Colorado challengers asked the court to rule that Trump’s actions on Jan. 6, 2021, rose to that level. Every fact-finder to reach the question, including the Denver district judge in this state case, the Maine secretary of state and the House Jan. 6 committee, has reached that same unavoidable conclusion.
The justices of the Supreme Court hardly disputed the ruling by the courts below that the former president had engaged in insurrection.
Remarkably, the justices did not challenge that fundamental premise. That alone is significant. For two hours, the justices of the Supreme Court hardly disputed the ruling by the courts below that the former president had engaged in insurrection. That shows the legal system understands full well the unique challenges Trump poses to our constitutional democracy — which will become essential as the court is faced with Trump’s presidential immunity appeal next week, and all four criminal cases against him move toward trial.
When Trump’s lawyer, Jonathan Mitchell, offered the opposite view, they refused to touch it. Instead, the justices focused on technical off-ramps. They expressed a legitimate — though, in our opinion, unpersuasive — concern that recognizing states’ power to bar candidates from the ballot would be impossible to administer in any orderly kind of way.
Chief Justice John Roberts asked about the “daunting consequences” of that power, noting the legal and political chaos that would ensue when “the other side” retaliated with its own ballot challenges. What if, Justice Samuel Alito asked, a president released foreign aid funds to a country that loudly proclaimed the United States as its enemy? Could a state decide on its own that he “gave aid or comfort” to an “enemy” of the United States and bar him from the ballot? Alito added a hypothetical apparently drawn from a recent article one of us (Seligman) wrote based on his forthcoming book: could a state legislature order its electors not to vote for Trump in the Electoral College because it decides he is an insurrectionist?
The justices hinted at a few ways out of this disarray. They could accept Trump’s argument that the disqualification clause isn’t “self-executing” and would instead require Congress to pass a statute implementing the constitutional provision. But that would make it unlike other clauses in the 14th Amendment, and there is only a little historical evidence from the Reconstruction era to support that approach.
They could alternatively hold that states and state courts lack the power to bar Trump, but federal courts do. But that holding would just open the door to a federal lawsuit the day after the court’s decision, and the court would end up addressing the same issues in a few months. It surely wants to avoid that Groundhog Day scenario.
We expect the court to rule swiftly that states can’t bar Trump from the ballot.
Or they could hold that this is a political question for Congress to resolve when it counts electoral votes on Jan. 6, 2025 — though it’s hard to imagine the court would want to set up yet another tumultuous confrontation on the Capitol steps.
The doctrinal labyrinth the court’s questions revealed is a testament to the strength of the legal arguments that Trump is an insurrectionist whom the Constitution prohibits from holding the presidency again. One way or another, though, a majority of the justices seemed convinced that they needed to avoid the turmoil of each state disqualifying candidates using different standards and different procedures — and they seem determined to rule accordingly. There would be a deep irony in the Supreme Court ruling for Trump on this ground. For all his bellowing about phantom voter fraud, Trump’s principal legal argument after the 2020 election was that state legislatures have the power to decide the manner of appointing electors. That, after all, is why his speech on the morning of Jan. 6 begged Vice President Mike Pence to “send it back to the states” so state legislatures could submit “corrected” electors. Now he’s begging the court to rule that state legislatures don’t have the power to prohibit their electors from voting for an oath-breaking insurrectionist. Necessity, it seems, is the mother of inconsistency. So what happens from here? We expect the court to rule swiftly — certainly not quite as fast as the one-day turnaround in Bush v. Gore, but not much longer than a month — that states can’t bar Trump from the ballot. And then, the court and the country’s attention will turn to the cases that represent the most dire threat to Trump’s political future and indeed his freedom: the criminal cases in Washington, D.C., and Fulton County, Georgia, for his attempt to overturn the 2020 election, and the criminal case in Manhattan for his 2016 election interference by concealing hush money payments in the days before that contest. (A fourth criminal case in Florida for his post-presidency pilfering of classified documents languishes due to delays by a Trump-appointed judge.) On Tuesday, the D.C. Circuit Court of Appeals rejected Trump’s ludicrous argument that he is immune from criminal prosecution in the D.C. case. Trump will ask the Supreme Court to intervene by Monday. If today’s approach is any indication, the justices will soon rule against him there — if they even agree to take up the case. The greatest victory for the challengers today is that the Supreme Court won’t give Trump the “total vindication” he so often claims. It will almost certainly not deny that Trump engaged in insurrection on Jan. 6. Trump will likely stand trial in state and federal court before the election, where juries of his peers will decide whether his attempt to stay in power was criminal. And the American people, as they always do, will ultimately decide. This time, however, their decision could be unusually stark: whether they want to hand a convicted felon the powers of the presidency for him to abuse once again.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Matthew Seligman
Matthew A. Seligman is a partner at Stris & Maher LLP and a fellow at the Constitutional Law Center at Stanford Law Center. He is the co-author, with Lawrence Lessig, of "How to Steal a Presidential Election." 
