I will have more detail later on this morning’s Supreme Court argument in Trump v. Anderson regarding whether the Colorado Supreme Court was right to throw Donald Trump off the ballot on the theory that Section 3 of the 14th Amendment disqualifies him from serving in federal office again after he “engaged in insurrection.” The short summary, for now: It seems very unlikely that the Court is inclined to let a state remove Trump from the ballot before Election Day, the Court is unlikely to reach the merits question of what it means to engage in insurrection, and the decision isn’t likely to be a close one — but it is very possible that we get a fractured decision, with different justices citing different reasons to throw out the Colorado ruling. That’s by no means a certain outcome; with a huge number of legal issues to address, the fact that different justices were thinking about different things doesn’t preclude them from coming together on at least one conclusion that commands a majority. The work of building that consensus may yet lie ahead in chambers and in the exchange of draft opinions.

Several of the justices were concerned about the implications of allowing a single state to kick off what could be a series of conflicting decisions on throwing a candidate off the ballot, and perhaps a cycle of retaliations (a worry especially raised by Justice Samuel Alito). Justice Amy Coney Barrett and Chief Justice John Roberts focused on the state process and standards of review. Justice Neil Gorsuch zeroed in on the technical arguments about whether the president is an “officer of the United States” or holds an “office under the United States” covered by Section 3. Justice Brett Kavanaugh argued vigorously for following the 1869 precedent of Griffin’s Case, under which disqualification could take place only under processes established by Congress (although Alito openly doubted Kavanaugh’s rationale for claiming that Congress had acceded to Chief Justice Salmon P. Chase’s view in that case of the meaning of Section 3). Justice Clarence Thomas suggested that states even in the 1860s excluded only state, not federal, officials. Even the Court’s liberals were not sold. Justice Elena Kagan kept returning to the idea that the presidency is a national office and not just the concern of a single state. Justice Ketanji Brown Jackson found it “troubling” that Section 3 never mentions the president: “If there’s an ambiguity” about whom Section 3 covers, Jackson asked, “why should we construe it against democracy?”

That’s not to say that the argument went entirely smoothly for Jonathan Mitchell, who presented Trump’s case. The former Texas solicitor general is a skilled appellate advocate who put on a bravura performance, but there were some questions he quite frankly couldn’t answer because there is no good answer to them. The needle he was trying to thread was to argue that the states can’t add to qualifications for federal office. He took that stance because of the Court’s U.S. Term Limits v. Thornton (1995), which barred states from imposing term limits. Courts applying U.S. Term Limits have held that states can’t impose a requirement on House candidates to prove residency to get on the ballot, because the Constitution only requires residency at the time of election and there’s time for a candidate to establish that in order to be sworn in. Mitchell’s theory is that disqualification is like that because Congress can lift the disqualification, and so it’s premature for a state to say that a candidate will still be disqualified on Election Day, when Congress might act before then. He conceded that the same theory doesn’t preclude states from keeping off the ballot candidates who are not natural-born citizens, won’t be old enough to serve, or are barred from a third presidential term under the 22nd Amendment. Alito was unimpressed, noting that we don’t say people can’t be prosecuted just because the president or the governor might choose to pardon them.

Mitchell’s case also ignores the uniquely broad latitude enjoyed by states in deciding under Article II how to choose electors for president. A state could, for example, have the electors selected by the state legislature without holding a popular election. It can, as the Court held in Chiafalo v. Washington (2020), require electors to be faithful and vote for the candidate they pledged to support. It is not at all clear that the reasoning of U.S. Term Limits applies in exactly the same way to presidential elections. As Justice Thomas wrote in his dissent in U.S. Term Limits:

Although the Constitution does set forth a few nationwide disqualifications for the office of Presidential elector, . . . no one contends that these disqualifications implicitly prohibit the States from adding any other eligibility requirements; instead, Article II leaves the States free to establish qualifications for their delegates to the electoral college. . . . Nothing in the Constitution, moreover, gives Congress any say over the additional eligibility requirements that the people of the States or their state legislatures may choose to set. . . . The majority thus creates an unwarranted divergence between Article 1’s provisions for the selection of Members of Congress and Article II’s provisions for the selection of members of the electoral college.

With so much focus on the process and coverage issues, there was little interest by any of the justices in delving much into the substantive standards for what an “insurrection” is and what it means to “engage” in one. That’s unfortunate. If the Court is concerned about a chaotic array of states reaching different decisions, it can give them a clear, bright-line set of rules on what is and isn’t insurrection. (That would exclude a thinly veiled hypothetical offered by Alito about excluding Biden from a red-state ballot for releasing funds to Iran.) If the Court is worried about uncertainty, it could settle the matter of Trump’s disqualification now, rather than kicking the can to Congress to decide when it counts the electoral votes — which, as you may recall, is how we got here in the first place. Deciding now would alleviate the concern of some of the justices that Trump might get elected and sworn in and then have people challenge the validity of his acts in office — exactly the practical worry that animated Chase in Griffin’s Case, where the disqualification of a judge was raised by a defendant in a murder case.

It remains to be seen how and when the Court will overturn Colorado’s decision. But if the argument was any indication, it will do so, and it won’t be close.