In the eleventh hour, the Supreme Court released its much-anticipated opinion on former President Donald Trump’s ballot eligibility. Colorado, the state whose Supreme Court was the first to exclude him, held its vote Tuesday as part of the broader Super Tuesday set of primaries. The Supreme Court handed its opinion down Monday morning, less than 24 hours before polls open and long after early and absentee votes had begun.
Anyone who listened to the oral arguments in February knew what the outcome would be. The justices all gave Colorado’s claims a cold reception. Unanimously, they voted to restore Trump to the ballot. They clearly were right to conclude so, contrary to much legal punditry.
This case focused on the long-ignored Section 3 of the 14th Amendment, which prohibits people from holding a list of federal and state offices “who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Though passed to exclude former rebels after the Civil War, its general language implies it could apply to subsequent events. Colorado’s Supreme Court concluded that Section 3 did apply to the Jan. 6 riots, that then-President Trump’s involvement barred his eligibility for future office, and that state officials such as themselves were empowered to make that determination for their own state’s elections.
In striking down the Colorado court’s decision, the Supreme Court agreed on one basis for its ruling: federalism. The 14th Amendment, the per curiam opinion wrote, significantly reworked the relationship between the national and state governments. We are well aware of that changed relationship as it has worked itself out in Section 1, which prohibits states from violating life, liberty, or property without “due process of law” and demands states provide the “equal protection of the laws” to all persons in its jurisdiction. But the justices said we should read Section 3 in the same light.
The restrictions of Section 3 originally sought to keep states, especially those that tried to secede, from inserting rebellious characters into the national government, thus possibly subverting our union. It limited states in their choices rather than giving them a new power against the nation. Moreover, giving the states the power to decide eligibility for federal office would decrease the power the national government had before the 14th Amendment. It would permit states possibly to undermine the national government through removing from eligibility those seeking its offices.
The Supreme Court also showed the wisdom of this demarcation due to the results the opposite conclusion would create. If each state began assessing Section 3 eligibility themselves, then a patchwork system could result, making it harder for an election to provide “a uniform answer consistent with the basic principle that ‘the President … represent[s] all the voters in the Nation.’” If we thought election outcomes were disputed now, then imagine the contention if states could decide Section 3 eligibility for themselves. A “patchwork” system would immediately diminish people’s faith in the process and weaken the effectiveness of the eventually declared winner.
The Supreme Court did disagree on whether to go beyond this federalism argument. In a rare split along gender (as opposed to party-nomination) lines, the five male justices — John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — all argued that Congress must legislate to put Section 3 into effect. The four female justices — Elena Kagan, Sonia Sotomayor, Amy Coney Barrett, and Ketanji Brown Jackson — each argued to leave the decision on only federalism grounds. But this split should be cold comfort to those hoping for a different outcome. It isn’t coming.
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We should see two additional takeaways from the Supreme Court’s decision. First, our judiciary, while not bereft of partisan moments, still can unanimously agree on important constitutional matters with real electoral import. Whatever the Democratic-appointed justices think of Trump, and it likely is not positive, they were not willing to go along with this legal scheme. Today, they are an institution more willing to entertain long-term consequences than any other branch.
Second, we should not forget how many people allowed themselves to be taken in by this theory. Many who should have known better did not. It shows how partisanship can blind and one’s reason can be subjugated to one’s fears or desires.
Adam Carrington is an associate professor of politics at Hillsdale College.
