Chris Crucial: SCOTUS and the 14th Amendment

What the Court said (and what it means)

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The Supreme Court heard oral arguments Thursday on the question of whether Donald Trump can be disqualified from the ballot due to his role in the January 6 insurrection. BIG deal.

But, as regular readers know, I am neither a) a lawyer nor b) a Supreme Court expert. So, I found someone who is both!

If you don’t know Steve Vladeck, you should. He is the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law — which is a pretty impressive title! He is also a self-described “SCOTUS nerd.” He’s perfect! (And make sure to join the 22,000(!) other people who subscribe to Steve’s Supreme Court Substack. 22,000!!!!)

Below is Steve’s take on what he heard from the Justices (and the lawyers) today — and where this is all headed. Enjoy!

Chris: Ok, let’s not bury the lede. What is THE headline coming out of the oral arguments today?

Steve: The headline is that the Court is almost certain to reverse the Colorado Supreme Court and allow President Trump to appear on that state’s Republican primary ballot — in a ruling that will effectively prevent any state from unilaterally keeping him off the ballot going forward. And if we’re getting to the subhead, it’ll be that it’s a very narrow ruling that commands most (if not all) of the justices, limited to the specific question of whether states can unilaterally disqualify presidential candidates under Section 3 of the Fourteenth Amendment, and avoiding all of the broader questions about how else that provision can be enforced—and whether it applies to former President Trump.

Chris: What, to your mind, is the strongest argument made by the Trump side?

Steve: After the Colorado Supreme Court’s ruling in December, I wrote for my Supreme Court newsletter, “One First,” about how this dispute puts the Court in the position of having to play high constitutional politics—where the implications of the competing positions are at least as significant as the positions themselves. Trump’s team (smartly) leaned into this—identifying both reasons why the Colorado Supreme Court’s decision, if affirmed, could cause real mischief not just in this election cycle but going forward, and ways that the Court could reverse that decision without having to validate Trump’s conduct or otherwise take a position on whether he did, in fact, engage in insurrection in his activities before and on January 6, 2021. In essence, Trump’s strongest argument has always been that no one state should have the power Colorado claimed, and that really seemed to resonate with the justices.

Chris: And the strongest argument made from the other side?

Steve: The best argument the Republican Colorado voters who brought this challenge have is the plain text of the Constitution—coupled with the reason why we amended the Constitution in 1868 to add Section 3, that is, to make sure that those who, after swearing an oath to the Constitution, work affirmatively to undermine it should not be eligible to hold federal office again. As much as scholars and linguists can debate what an “insurrection” is, it’s really hard to look at Trump’s efforts to subvert the democratic transition of power both before and on January 6 and not view that as an “insurrection.” And perhaps if we had a more robust body of precedent interpreting Section 3, or applying it to a presidential candidate, it would be easier for the Court to focus exclusively on the text. But part of the problem for the challengers has always been the disconnect between what the text seems to contemplate and what that would mean in practice.

Chris: Did anything you heard from the Justices today surprise you? 

Steve: The biggest surprise, to me, was just how little anyone wanted to talk about the “merits,” i.e., the Colorado courts’ determination that Trump engaged in insurrection. Even if the Court is not ultimately going to reach that issue, the fact that it didn’t even come up until the very last question (from Justice Jackson) to Trump’s lawyer was a surprising and revealing sign of just how little interest there is in the Court in touching that issue. I had thought that one possibility for a mixed judgment from the Court was a ruling that agreed with the Colorado courts as to the reprehensibility of Trump’s conduct, while finding a technical reason to nevertheless leave him on the ballot. We’re clearly heading for the latter, but perhaps with nary a mention of the former.

Chris: Finish this sentence: “Based on today’s arguments, the most likely decision by SCOTUS will be __________________.” Now, explain.

Steve: “To split the difference in the two big Trump cases it has, or will shortly have.” It was just two days ago that a unanimous and ideologically diverse panel of the D.C. federal appeals court held that Trump is not immune from criminal prosecution for his role leading up to and on January 6. That ruling effectively gives Trump until only next Monday (February 12) to seek further review from the Supreme Court if he wants to keep the trial on hold. In retrospect, both the substance and timing of the D.C. Circuit’s ruling could be a real gift to the Supreme Court—which can now look at these two cases as antipodes, where the Court could in short order leave Trump on the ballot in Colorado, but also clear the way for his prosecution to proceed in Washington simply by refusing to “stay” the judgment from the federal appeals court. Although the legal issues in the two cases are different, it’s hard not to see the visual of such a “mixed verdict” appealing to Chief Justice Roberts—as a way of trying to steer the Court through this political maelstrom without taking further hits to its reputation and public credibility.

NOTABLE QUOTABLE

“McConnell’s problem is, he doesn’t listen to his members. He doesn’t talk to his members…I haven’t had a conversation with him in over a year.” — Missouri Sen. Josh Hawley on Senate Minority Leader Mitch McConnell. (Hawley has called on McConnell to step down as leader.)

ONE GOOD CHART

Democratic leads over Republicans on party identification among black and Hispanic voters are historically low, according to Gallup

SONG OF THE DAY

I ❤️ The Revivalists and The Head and the Heart. So, obviously, I ❤️ this collab between the two bands on the song “Good Old Days.”

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