Settling a constitutional dispute for the entire nation, and doing so in sweeping terms, a bare majority of the Supreme Court on Monday handed to Congress the sole power to control when and how a candidate for federal office may be barred from the ballot under a 156-year-old constitutional clause.
It is a power that had been largely forgotten until recently, and it turned out to be a broader power than it had ever been understood by the Court to be – until today. Because it was a binding interpretation of the Constitution, it now can be changed only by a formal amendment – a process last used 53 years ago.
Further, that is a power that, as long as Congress remains as deeply divided between the political parties as it now is, neither chamber is likely to use.
The practical effect of that might mean that the constitutional clause at issue might seldom be applied, if ever. (The clause, in the 14th Amendment, disqualifies anyone from public office who has rebelled against the Constitution after taking an oath to defend it.)
The ruling, though, left uncertain what role, if any, remains for the courts, should a future opportunity arise to interpret that clause again. It also left unclear whether there is any role for the Executive Branch, including the Justice Department, in enforcing the clause.
A constitutional case with deep political impact, which had reached the Court from just one state, Colorado, resolved the controversy today for all. It was an exercise of constitutional authority over federal elections not matched since the Court’s ruling 24 years ago, in Bush v. Gore, putting Republican George W. Bush in the White House.
In political effect, this was a monumental victory for ex-President Donald Trump, who is now free – by constitutional dictate – to run for the President and any other federal office. Tomorrow, when 15 states cast votes in presidential primary elections and caucuses on the busiest day of this campaign year, there will be no doubt that he will be on the ballot. And that will be true, as well, for the general election in all 50 states next November 5.
While there were no outright dissents filed among the 20 pages of opinions, the Court was deeply split on the breadth of the majority’s reasoning. The majority opinion was unsigned (it was issued in the name of the Court, that is: “Per Curiam”). But it definitely had the full support of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas – among the Court’s dominant conservative majority.
The sixth member of that majority, Justice Amy Coney Barrett, penned a one-page opinion, supporting a part of the majority opinion but noting that the majority should have stopped before going beyond the single issue of whether the states had any role in enforcing the clause. She also suggested that, because the Court had found itself in the midst of a “volatile season” of picking a President, her colleagues should have avoided amplifying “disagreement by stridency.” The Court, she said, “should turn the national temperature down, not up.”
But, although there were no dissents, as such, it was plain that this controversy had, indeed, raised the temperature among the Justices. While the Court did not go to the bench to announce the ruling (its usual practice), the Court’s three liberal Justices would surely have spoken out had that been done. Their separate opinion exhibited none of the signs of agreement that had been displayed when the Court held a hearing on February 8, in this case, Trump v. Anderson. It appeared at that time that there would be a large majority, perhaps even all nine votes, to allow Trump to remain on the ballot. The unanimous vote today on that was confined to the bottom line, only: he is on the ballot across the nation.
The liberal Justices’ opinion was probably composed by all three: Elena Kagan, Ketanji Brown Jackson and Sonya Sotomayor. The majority, they said, “shuts the door on other potential means of enforcement” of the disqualification clause, assigning that duty solely to Congress and, in addition, telling Congress just how it must do so.
The majority found the basis for its wide-ranging ruling in the final part of the 14th Amendment, which specifies in Section 5 that “the Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” (That provision is separate from the disqualification-for-insurrection clause, which is Section 3. Those who support a broad interpretation of Section 3 have argued that it was self-enforcing, separate from Section 5. That argument failed today.)
The majority spent a little of its 13-page opinion, near its end, answering those who did not join it in full. It said it had to lay out all of the reasons for the ruling as “necessary to provide a complete explanation” of why the Court was shutting out the states from enforcement.
The issue over the meaning of the Constitution’s 14th Amendment had come to the fore last summer, prompted entirely by the riotous attack on the U.S. Capitol on January 6, 2021, in the midst of a sustained effort by Donald Trump and his followers to undo his defeat in the 2020 election in order to stay in office.
The three liberal Justices, in their separate opinion, referred more than once to an “oathbreaking insurrectionist,” making it explicit that they were referring to Trump.
So far, only the state courts in Colorado and Illinois have ruled that Trump was disqualified for violating the clause, as did Maine’s secretary of state, but none of those rulings had been put into actual effect because the issue was being reviewed by the Supreme Court.
Although Trump v. Anderson is one of three major cases now before the Court affecting Trump and his legal troubles, today’s opinion made no mention of the other two: a claim by Trump that he has absolute immunity to criminal charges arising out of the 2020 election incidents, and an appeal by a Capitol rioter seeking to narrow down the scope of a federal criminal law that is among the charges against him, but also against Trump. The Court will be dealing with those later in its current term, probably deciding them in late June or early July.
Those cases, along with two state cases against Trump in Georgia and New York and the Mar-a-Lago classified documents case in Florida, will affect the timing and scope of any prosecution of Trump. If he were to be convicted in any before the election, that could have an impact on voters’ choice in November.
