The U.S. Supreme Court had an appointment with history on Thursday, and from the sounds of it, the justices were looking for a way to get out of the obligation. They all had their own reasons. Neil Gorsuch parsed the text. Amy Coney Barrett invoked due process. Clarence Thomas and Ketanji Brown Jackson, the oldest and the newest justices, respectively, probed originalist context. John Roberts and Elena Kagan, the pragmatists, fretted about creating electoral chaos. No one, with the possible exception of Sonia Sotomayor, seemed to be up for deciding what legal consequences Donald Trump should face for January 6 — at least not yet.
The case, Trump v. Anderson, concerns a section of the 14th Amendment that prohibits anyone who has “engaged in insurrection or rebellion” from holding “any office, civil or military, under the United States.” The Reconstruction-era provision was meant to keep those who served in the Confederate army or government from reclaiming positions of power in their home states after the Civil War. Rebellion and insurrection gradually receded as concerns, and the passage fell into dormancy. Then Trump whipped his supporters into a frenzy and sent them marching in the direction of the U.S. Capitol to overturn the 2020 election. Liberal legal scholars decided the insurrection provision was not just a line of junk DNA but a viable constitutional prohibition that could be applied to Trump. Last year, after a trial, the Colorado Supreme Court backed that interpretation, ruling Trump ineligible to run for president and ordering him removed from the state’s ballot.
After spending much of January ping-ponging between courtrooms and campaign rallies and attacking the “broken” legal system, Trump chose not to attend oral arguments over the Colorado decision. An anonymous campaign adviser told CNN there was “no upside” to his appearing, since the conservative tilt of the Court would seem to favor him and he didn’t want to crowd the three justices he had appointed. But Trump was still there anyway, looming in the negative space. I walked into the courtroom at the same time as the Republican front-runner’s legal team, passing through a cordon of black-clad protesters who shouted “Traitors!” at them. The scene inside the churchlike, marble-columned chamber was hushed and intense. “If we affirmed and we said he was ineligible to be president,” the Trump appointee Barrett said, it would practically have “the effect of Colorado deciding” the issue for the entire nation.
“What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide?” Trump appointee Brett Kavanaugh asked Denver attorney Jason Murray, who had argued for disqualification. “Because your position has the effect of disenfranchising voters to a significant degree.”
“The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him,” Murray replied. “And the Constitution doesn’t require that he be given another chance.”
That was about as close as the justices got to the heart of the matter. Roberts acknowledged the violence of January 6 and, briefly, its proximity to his courtroom, making an oblique reference to what happened “down the street.” But otherwise, he and his colleagues seemed determined to find a way to decide the case without addressing the question of whether Trump had engaged in insurrection.
Most of the argument concerned technical issues surrounding the wording and meaning of the 14th Amendment. Every schoolkid learns about its first section, the provision that guarantees each citizen “equal protection” and “due process of law.” But it has four other parts, and Section 3 says that any person who had “previously taken an oath, as a member of Congress, or as an officer of the United States” to support the Constitution would be prohibited from holding a long list of offices if they support rebellion. Trump’s appeals briefs argued that the seeming catchall phrase “officer of the United States” applies only to officials appointed by the president, relying heavily on the scholarship of a previously obscure law professor named Seth Barrett Tillman, who has made a career of excavating ultrafine distinctions in the meaning of constitutional phrases. (Tillman flew in from Ireland, where he teaches, to watch the argument. Afterward, I saw him pausing to take a photo of the portrait of originalist hero Antonin Scalia.) Because Trump, alone among presidents since George Washington, had never served in the Army or otherwise in a public office that required him to take an oath prior to his becoming president, his attorneys argue that he is not covered by the wording of Section 3.
“A bit of a gerrymandered rule, isn’t it, designed to benefit only your client?” Sotomayor said.
“That implies nefarious intent,” replied Trump’s attorney Jonathan Mitchell.
“Is that rule a sensible one?” Kagan asked. “You know, if they had thought about it, what reason would they have given for that rule?”
“This was the text that was settled upon,” Mitchell said. “And it does seem odd that President Trump would fall through the cracks in a sense, but if ‘officer of the United States’ means appointed officials, there’s just no way he can be covered under Section 3.”
In his argument for the plaintiffs, Murray said the Court should “reject the claim that the framers made an extraordinary mistake” in omitting the president alone from the list of people who could be disqualified for engaging in insurrection. Thomas immediately fixed on the original intent of the law, referring to his reading of historians of the Civil War and Reconstruction. “What was the purpose of Section 3?” he asked. “The concern was that the former Confederate states would continue being bad actors.” The “Radical Republicans” in Congress at the time had been primarily focused on keeping the old southern power structure from reasserting itself on the state level. “They did not think about authorizing the South to disqualify national candidates,” he added.
Thus, Thomas said, Colorado’s decision to remove Trump from the ballot ran counter to the underlying rationale of the 14th Amendment, which was meant to take power from the states. Roberts jumped in to concur. “That seems to be a position that is at war with the whole thrust of the 14th Amendment,” the chief justice said, “and very ahistorical.” More surprising, President Biden’s appointee, Jackson, struck a similar note. She asked Murray why, if the framers of the amendment had wanted to create a mechanism for states to bar candidates for national office from the ballot on the grounds of insurrection, they had chosen not to include the presidency on their lengthy list of offices that former rebels would be banned from holding.
“What is very clear from the history,” Murray said, “is that the framers were concerned about charismatic rebels who might rise through the ranks.”
“But then why didn’t they put the word president in the very enumerated list?” Jackson asked.
She and other justices seemed to think the omission might have been more than just an oversight. If one state could throw a presidential candidate off the ballot for insurrection, Samuel Alito asked, what would prevent another state from doing the same to an opponent. “Suppose there’s a country that proclaims again and again and again that the United States is its biggest enemy,” Alito said, making a clear reference to Iran. “And suppose that the president of the United States for diplomatic reasons thinks that it’s in the best interests of the United States to provide funds or release funds so that they can be used by that country?” Could a state potentially decide that president had “given aid and comfort to the enemy” and disqualify him under Section 3?
“I would expect,” Roberts said, “a goodly number of states will say, whoever the Democratic candidate is, you’re off the ballot. And others for the Republican candidate, you’re off the ballot.”
Jackson asked “why the framers would have designed a system” that could create such “disuniformity” in terms of how major-party candidates are treated from state to state.
“Well, what they were concerned most about was ensuring that insurrectionists and rebels don’t hold office,” Murray said. “And so once one understands the sort of imperative that they had to ensure that oath-breakers wouldn’t take office, it would be a little bit odd to say that states can’t enforce it, that only the federal government can.”
Barrett showed concern that the due process Trump received — a five-day trial held on a quick timetable in state court, in which he did not testify — might not have been sufficient given the potential weight of the penalty. Murray replied that the state court had relied heavily on the congressional report produced by the House Select Committee on the January 6 attack.
“You want us all to just watch the video of the Ellipse,” Barrett said.
“The essence of our own case is his own statements,” Murray replied.
Based on the tenor of the argument, it appears the 14th Amendment case will present the Court with an easy call. But in the coming months, Barrett and her colleagues will be forced to confront the events of January 6 in ways that will be more visceral and, likely, more closely decided. Earlier this week, a federal appeals court in Washington, D.C., unanimously turned away Trump’s sweeping claim of presidential immunity from prosecution in the federal criminal case related to his actions on January 6. Trump has appealed to the Supreme Court, which would have to consider the case on an expedited schedule in order for Special Counsel Jack Smith to get a trial underway before the November election. The Court has also agreed to hear a second, comparatively under-the-radar case challenging an underlying criminal statute that prosecutors have relied on in their cases against Trump and many other January 6 defendants.
It may not mean anything important, but Kavanaugh twice brought up questions that involved criminal prosecution of insurrectionists. Of all the members of the Court, he would appear to have the most experience in dealing with presidential criminal behavior. Back in the 1990s, before he was a federal judge, Kavanaugh was a member of Independent Counsel Kenneth Starr’s staff and played a key role in the perjury investigation of President Clinton. “If the concern you have, which I understand, is that insurrectionists should not be able to hold federal office,” he said to Murray, “there is a tool to ensure that does not happen — namely, federal prosecution of insurrectionists. And, if convicted, Congress made clear you are automatically barred from holding federal office.”
“The framers of Section 3 clearly understood that criminal prosecutions weren’t sufficient because oftentimes insurrectionists go unpunished,” Murray replied.
Kavanaugh asked a similar question to Mitchell, who replied that prosecution could be used in all but one case. “Our client is arguing he has presidential immunity,” Mitchell said. “So we would not concede that he could be prosecuted for what he did on January 6.”
“Understood,” Kavanaugh replied.
That will be a question for another day.
