Former president Donald Trump hasn’t had many good days in court in the last few months — which is not good when you’re spending a lot of days in court. But he had a good one today.
To describe the Supreme Court as unreceptive to the position of Colorado that a state may disqualify a candidate from appearing on the ballot under the insurrection clause (Section 3 of the 14th Amendment) would be putting it mildly. We often think of the Court in political terms — i.e., which justices were appointed by presidents of which party. I know I do. The justices sometimes defy that way of predicting case outcomes. Today, it was obvious that the justices, for the sake of themselves and their cherished institution, were rising above such expectations. I am not as ready as some of my colleagues in the legal profession to wax rapturously about that, because in politically charged cases, I still think we know where most of the justices are going to come out most of the time.
But that said, we do sometimes wrongly conflate partisan affiliation with ideology. There is much overlap there, but they are different. Ideology, and the way it manifests in judicial philosophy, is a more reliable indicator when we’re assessing likely case outcomes. For that reason, I think Colorado Democrats and their allies in the cause of removing Trump from state ballots had a steep hill to climb with justices on both sides of the Court’s philosophical divide.
The majority of the justices are conservative, more or less in the originalist and textualist mold. You can easily see Colorado’s problem with them: The state’s position flouts text and history.
Textually, it’s not just that the section does not mention the president (or for that matter, the vice president) in its list of potentially disqualifiable officials (an omission that seemed to trouble Justice Ketanji Brown Jackson, a progressive justice, even more than her conservative colleagues). Colorado claims a right to do something that the amendment does not literally countenance. Section 3 says an insurrectionist may not be in those federal positions; Colorado is trying to expand that to say an insurrectionist may not even seek office.
If insurrectionists were elected, Congress would be within its authority to refuse to seat them (assuming they’d been satisfactorily proved to be insurrectionists — which is a whole other can of worms). Yet Section 3 does not prohibit even a proven insurrectionist from running for office. The state is asserting the power both to invoke Section 3 as its authority to disqualify people, and to change — expansively — the terms of Section 3’s disqualification parameters. When pressed on that anomaly, advocates for Colorado’s side did not have a convincing answer. They relied on some amorphous blending of the Constitution’s vesting in the states of (qualified) authority over federal elections, the Tenth Amendment, and, of course, the bottomless reservoir of due process. Huh?
More fundamentally, Justice Clarence Thomas (among others) pressed counsel for historical examples of states excluding federal officials. There is some ambiguity in the historical record, but the bottom line is that the lawyers could come up with no clear examples. As Thomas pointed out, there were lots of former Confederate officials and soldiers in the aftermath of the Civil War; if Section 3 were understood to mean what Colorado says it means, there should be lots of examples. There just aren’t.
What most surprises people is what appeared to be the hostility of the left-leaning justices to Colorado’s position. If we think about Justices Jackson, Sonia Sotomayor, and Elena Kagan as Democrat appointees, it is indeed surprising — you assume if Trump is against it and Democrats are for it, they’re with the Democrats. But if, instead, you think about these justices as philosophical judicial progressives, their hostility makes perfect sense.
The 14th Amendment is the foundation of the progressive project in American governance. It is, as Chief Justice Roberts pointed out today, a signal shift in power: It restricts the states and empowers the federal government. American progressivism is nothing if not anti-federalism. Colorado’s position, however, is that Section 3 empowers a state to set the conditions of eligibility for federal office. That is not a tenable interpretation; the 14th Amendment was about limiting state power.
In fact, as the argument unfolded, the justices teased out of the lawyers that, according to Colorado, one elected state official would have the power to disqualify a candidate for federal office with no judicial review, and some interpretations of estoppel principles would call for other states to accept that conclusion — with no federal intervention, no basic due-process requirements, and with the Court itself at sea regarding the standard of review to be applied to varying state proceedings.
As Justice Kagan observed, “This sounds national.” The point being: The 14th Amendment’s disqualification provision calls for a national standard. I believe, for what it’s worth, that that’s why Section 5 of the 14th Amendment empowers Congress, not the states, to enforce the amendment’s provisions.
What you’re always looking for in litigating before an ideologically divided tribunal is “the sweet spot,” the thing that they can all agree on that helps you. Today, Colorado was in the antithesis of the sweet spot — arguing a position that both sides, for their different reasons, will reject.