The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster

On Monday, the Supreme Court unanimously reversed a Colorado Supreme Court decision removing Donald Trump from the ballot because of his engagement in an insurrection on Jan. 6. But that top-line holding is where the unanimity ended because five conservative justices just couldn’t help themselves: They went much further than the case required, announcing an entirely new rule that Congress alone, through “a particular kind of legislation,” may enforce the constitutional bar on insurrectionists holding office. As the three liberal justices pointed out, in a separate opinion that glows white-hot with indignation, the majority’s overreach “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.” They are, of course, correct. After this decision, it is impossible to imagine a federal candidate, up to and including the president, ever being disqualified from assuming office because of their participation in an insurrection.

Monday’s case, Trump v. Anderson, is proof positive that the Supreme Court can act at rapid speed to resolve a dispute of national importance—at least when Trump’s own interests are under threat. The Colorado Supreme Court disqualified Trump on Dec. 19. SCOTUS took up the case on Jan. 5 and heard arguments on Feb. 8. Now, less than a month later, the justices have resolved the case in Trump’s favor. The court’s ultra-accelerated consideration of Anderson sits in sharp contrast with its treatment of Trump’s claim of absolute immunity in his criminal trial over Jan. 6, which the justices have, by comparison, slow-walked to the point that it appears unlikely the former president could face trial before November. This disparity alone may provide a clue that there is something other than law afoot in these cases.

Anyone in need of another clue can look to the majority’s unsigned opinion in Anderson shielding Trump from removal by the states. This case involved a genuinely difficult dispute: Section 3 of the 14^th Amendment, enacted in the wake of the Civil War, bars former insurrectionists from reclaiming office but does not explain how this bar should operate. A group of voters urged the Colorado courts to enforce the amendment on their own, under a state law that lets voters challenge any candidate’s legal qualifications for office. The Colorado Supreme Court heeded the call and dumped Trump from the ballot. All nine justices have now agreed that states may not unilaterally disqualify a presidential candidate. Doing so, they reasoned, would allow a handful of states to effectively determine the outcome of a presidential election, undermining the inherently national nature of both the election and the presidency itself. The Constitution’s division of authority between the federal and state governments cannot permit a state’s go-it-alone effort to disqualify a federal candidate who’s running to represent the entire country.

That, however, is where the agreement ends. Five justices—Chief Justice John Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—went further: They declared that only Congress may enforce the insurrection clause against federal candidates. How, exactly? The majority says that Congress must “prescribe” specific procedures to “ascertain” when an individual is disqualified under the 14^th Amendment. Such procedures, of course, do not exist today. And without them, the majority insists—in just a few paragraphs of sparse reasoning—the insurrection clause cannot be enforced against office seekers. It derives this conclusion from two primary sources: “Griffin’s Case,” an 1869 opinion written by Chief Justice Salmon Chase, acting as a circuit judge, and Section 5 of the 14^th Amendment, which says, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The three liberal justices wrote a separate opinion, authored jointly, to explain why this reasoning fails. First, Griffin’s Case was, until Monday, widely discredited as the political handiwork of a chief justice plotting to run for the presidency as a great conciliator between North and South. It is “a nonprecedential, lower court opinion by a single Justice in his capacity as a circuit judge,” as the liberal justices wrote. Moreover, Sen. Lyman Trumbull, an author of the 14^th Amendment, resisted the logic of Griffin’s Case, declaring that while congressional legislation might provide a “more efficient and speedy remedy” for disqualifying a candidate, it is the 14^th Amendment itself that “prevents a person from holding office.”

Second, it is bizarre to claim that the insurrection clause requires enabling legislation by Congress when the remainder of the 14^th Amendment—indeed, all three amendments ratified after the Civil War—is “self-executing” (meaning it does not require congressional action for enforcement). Everyone agrees that Congress need not pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement. Why, the liberals wondered, did the majority create “a special rule” for the insurrection clause alone? They added that the clause does mention congressional action, but only to say that Congress may lift a disqualification by two-thirds vote: “It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.”

These disagreements matter a great deal. As the liberals point out, the majority’s sweeping Congress-only approach “forecloses judicial enforcement” of the insurrection clause—in, for instance, the context of a criminal trial involving an insurrectionist. It also bars future enforcement on the basis of “general federal statutes” that compel “the government to comply with the law,” since the majority says any congressional enforcement must be “tailored” to the insurrection clause. And it even empowers the Supreme Court to prevent Congress from disqualifying an insurrectionist in the future, because the court can claim that any enabling legislation did not adhere to the made-up rules in Monday’s opinion. By blocking off these pathways, the liberals wrote, the majority “foreclose future efforts to disqualify a presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course.” They continued:

Notably, the liberals actually had Justice Amy Coney Barrett on their side too. She authored a separate opinion expressing her disapproval of the majority’s overreach but declining to say more because “the court should turn the national temperature down, not up.” So, in effect, Anderson is a 5–4 decision, with a bare majority effectively repealing the insurrection clause for federal officeholders. The liberals’ disapproving citations to Bush v. Gore and Dobbs give a sense of how disastrously they believe the majority went astray.

It should go without saying that Congress will not enact legislation enforcing Section 3. The Republican Party is about to renominate the alleged insurrectionist in this case as its candidate for the presidency in 2024. The party is complicit in the violent events of Jan. 6. It will not allow any insurrection-related laws to clear the Senate filibuster. The whole point of a written constitution is that it can protect individual rights and democracy even when the democratic process itself is corrupted or compromised. SCOTUS has backtracked from that guarantee just when American democracy needs it most.

In their incandescent opinion, the liberal justices walk right up to the line of accusing the majority of doing a special favor for Trump. They are right to do so, and they would have been justified to cross it. The majority had no reason to nullify the insurrection clause other than an obvious desire to ensure that no other federal candidates are nixed from the ballot because of their participation in Jan. 6. An optimist might say that by doing so, the majority was just trying to inject stability into the upcoming election. But close court-watchers know that every time this Supreme Court waves the flag of stability, it does so on behalf of Trump and his allies. Anderson’s bottom-line outcome is certainly defensible. But the rest of it serves as an unwarranted gift to Donald Trump and the oathbreakers who violently assisted his efforts to overturn a free and fair election.