The Supreme Court heard arguments on Thursday on whether Colorado could toss Donald Trump off the presidential-primary ballot — and, by implication, whether Trump is disqualified by the Constitution from being president again. The argument went poorly for Colorado, and properly so. There may not even be two votes to uphold the Colorado Supreme Court’s decision. We hope that the justices will resolve the case in a way that settles this question and leaves the presidential election to be decided by the voters.
The first and overriding duty of the justices is to apply the law as written. It is not the job of judges to second-guess the policy choices of the people and their representatives who wrote and ratified the Constitution.
There is one clear textual path out of this case: Trump simply did not “engage” in any “insurrection” within the meaning of Section 3 of the 14th Amendment. Trump deserves responsibility for inspiring the riot at the Capitol by some of his supporters, and for setting in motion the events that produced it. There was a significant case for his second impeachment on that basis. But the ordinary meaning of the word “engage,” then as now, requires active participation in the riot. No amount of creative wordsmithing changes the fact that Trump didn’t do that.
Because not everything is a matter of textual interpretation, there is also a place for prudence and statesmanship in the judicial function. The Court decides, for example, what cases to take and when to decide them. When it can choose among multiple different grounds to resolve a case, there is judgment involved in the choosing. That is where the Court legitimately can and should consider the consequences of different paths.
Much of the argument revolved around whether the 14th Amendment — or the choices of Congress in implementing it — allow a state court to enforce Section 3 and, if so, whether it must wait for a candidate to be elected before disqualifying him or her. The specter of dueling states reaching contradictory decisions or engaging in retaliatory strikes against the opposing presidential candidate are real concerns — although they would be less so if the Court handed down a clear definition of what it means to engage in insurrection in the first place.
Worse, if the Court ousts state courts from deciding these issues at the stage of ballot access, it runs the risk that Trump’s qualification for the presidency may remain unresolved until the electoral votes are being counted by Congress — or maybe even until after he is sworn in. Some of the justices raised the specter of military officers forcing a crisis by declaring that the president was disqualified from office and not empowered to give them orders. Even if the Court forecloses the latter form of challenge by holding that only Congress can decide who is disqualified, there are risks in placing the decision with Congress when it is counting electoral votes — the same risks that led to rioters descending upon the Capitol for the last electoral-vote count.
There are two bases for resolving this case that would not only keep Trump on the ballot but finally settle his qualification for office. One is for the Court to rule, as a matter of law, on whether his conduct as described in the Colorado supreme court’s opinion amounted to engaging in insurrection at all. The other is to accept Trump’s argument that the presidency is not an “office . . . under the United States” to which disqualification under Section 3 applies. Even Justice Ketanji Brown Jackson appeared sympathetic to the latter argument. It has its own risks, however, because a ruling on that ground would potentially open new questions about the coverage of other provisions in the Constitution that speak in terms of offices and officers. The Court should not go there out of convenience rather than out of sound textual interpretation.
If a majority of the Court concludes that Colorado is wrong on either of those grounds, as a matter of judicial statesmanship, it should reach those questions first and settle Trump’s qualification as decisively as possible. Then, the people will decide.