It just doesn’t know how.
If these questions sound like they’re dancing around the main point—whether the Fourteenth Amendment prohibits Trump from a second presidential term because of his role in encouraging his followers to violently attack the U.S. Capitol in order to illegally hold on to power after losing an election—it’s because they are. During oral arguments that lasted about two hours, more than 50 minutes passed before anyone touched on the little matter of whether January 6 met the Fourteenth Amendment’s standard for an “insurrection.” (According to Jonathan Mitchell, Trump’s counsel, it did not—though it was, he admitted, a riot that was “shameful, criminal, violent—all those things.”) That question, along with the related question of whether Trump “engaged” in insurrection under Section 3, went relatively unaddressed for the rest of the argument. At one point, the chief justice sounded bemused by the possibility that anyone might expect him to adjudicate what did or didn’t constitute insurrection under the Fourteenth Amendment.
