Noah Feldman
In a remarkable plot twist, the Colorado Supreme Court has found that former President Donald Trump must be excluded from the state’s primary ballot because he engaged in insurrection on Jan. 6, 2021. Now the pressure is on the U.S. Supreme Court to decide whether Section 3 of the 14th Amendment, on which the Colorado court relied, truly does block Trump from the ballot.
This would be a historic case, to say the least. If the justices rule directly on whether Trump is disqualified under the Constitution, their ruling would apply in every state, not only Colorado.
If you’re one of those people who want the justices to save us from the shame and danger of re-electing a president who tried to break democracy in his first term, try not to get too hopeful. Given the unprecedented nature of the case and the court’s composition, it’s likely that the justices will overturn the Colorado decision.
The high court has several means at its disposal to overturn the Colorado ruling, none of which are ideal from the standpoint of the conservative majority. But all are at least conceivable. To see the justices’ options, here’s a short tour through the main points of the Colorado decision.
First, the state court claimed the authority to consider whether the federal Constitution does indeed bar Trump from the state primary ballot. To do so, it relied on an opinion by Justice Neil Gorsuch (when he was still an appellate judge) upholding a 2012 decision by the Colorado secretary of state to keep a naturalized citizen off the presidential ballot. The Supreme Court could distinguish or reject that part of the opinion, saying the state court doesn’t have the authority to rule on those matters, but only at the cost of some apparent inconsistency.
Second, there’s Griffin’s Case, the most important one ever to address Section 3 of the 14th Amendment. Griffin’s Case held that the bar on insurrectionists holding office doesn’t go into effect unless Congress passes a law providing for its execution, which it has not done. Written by Salmon P. Chase in 1869 when he was Chief Justice of the United States but sitting as a circuit judge, Griffin’s Case isn’t technically binding precedent. Following the lead of a couple of academic articles, the Colorado court also rejected Chase’s opinion as a poor reading of the 14th Amendment because its other sections don’t seem to require congressional action to go into practical effect.
In my own view, Griffin’s Case needs to be taken more seriously. Even if you think it was wrongly decided, the decision created the background legal circumstances where the Supreme Court hasn’t subsequently ever applied Section 3. That’s what precedent is all about. The justices could hold that the precedent of Griffin’s Case gives them the ability to reverse the Colorado decision, but that would put the conservatives in an awkward position, given their willingness to overturn even strong precedents like Roe v. Wade.
The Supreme Court has a third option to put Trump back on the ballot. This one involves the meaning of the words “an officer of the United States.” The Colorado court held that those words, as used in the 14th Amendment, include the presidency. I think they got this part right. The presidency is an office — one created under the Constitution and therefore of the U.S.
But the justices could rule that the meaning of “officer of the United States” under the 14th Amendment doesn’t apply to the presidency itself, only to other federal or state offices. If so, Trump wouldn’t be affected by the ban.
There’s little historical evidence to support that view. But the conservative wing of the court has already shown itself perfectly willing to distort historical evidence, as it has done most egregiously on the right to bear arms, which the Second Amendment literally says is meant to protect well-regulated state militias.
This brings us to the thorniest part of Colorado’s decision to exclude Trump, namely the legal conclusion that his acts on Jan. 6 amounted to insurrection. The Colorado Supreme Court upheld a ruling to this effect by a lower Colorado court based on a few days of testimony plus reliance on Congress’ Jan. 6 proceedings.
The U.S. Supreme Court could say this conclusion was flat wrong, which would protect Trump from other state courts trying to do the same thing. That would, however, require a majority of the justices to say that they are legally convinced that Trump’s Jan. 6 conduct doesn’t fit the constitutional meaning of insurrection. That’s hard to do without a more detailed factual record before the court; and it would subject the justices to withering public criticism from anti-Trumpers. (This wouldn’t technically preclude Jack Smith’s prosecution of Trump because that isn’t for a crime of insurrection, but it would drag the justices into factual matters about Jan. 6 that are at issue in the federal prosecution.)
The justices could alternatively say that the evidence presented in the Colorado lower court was insufficient to reach this conclusion. This would be milder, but could allow the issue to be re-litigated in Colorado and elsewhere with more evidence. The Supreme Court would probably view that as an invitation to legal chaos less than a year before the election.
The upshot is that a majority of the justices won’t like the idea of being responsible for blocking Trump from the ballot, so they would have to pick the least worst way of making the Colorado Supreme Court decision go away. The court now finds itself dragged into the ultimate political territory of a presidential election. That won’t be good for its legitimacy, no matter what it decides.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
