The Nation MagazineWhile the ruling will be overturned by the Supreme Court, the conservative justices will have to tie themselves into a knot to do it.
While the ruling will be overturned by the Supreme Court, the conservative justices will have to tie themselves into a knot to do it.
A protester stands outside Trump Tower in Manhattan demanding that state governments disqualify former president Trump from appearing on ballots in 2024 under the 14th Amendment.
On Tuesday, the Colorado State Supreme Court ruled, by a vote of 4-3, that Donald Trump is ineligible to be on the ballot for the upcoming Republican primary. The court found that Trump engaged in insurrection and, under Section 3 of the 14th Amendment, is disqualified from holding public office again, and thus cannot appear on the Republican primary ballot in Colorado. The judges stayed the ruling until January 4, 2024—the point at which Colorado is supposed to submit its primary ballot—in case the Supreme Court of the United States would like to intervene.
The Supreme Court will almost certainly intervene. And, just to be plain about it, the conservative-controlled court will almost certainly rule that Trump is allowed on the Colorado ballot. It would be wrong for anybody to get their hopes up: Republican-appointed justices are incredibly unlikely to kick the presumptive Republican nominee off of a presidential ballot.
But the Colorado opinion is designed, at least, to make the Supreme Court look very ugly and partisan when it bends over backward to save Trump and preserve his ability to threaten the country. That’s because the Colorado opinion is grounded in two things the Republicans on the court claim to hold dear: textualism and states’ rights.
For true textualists, the text of Section 3 couldn’t be more clear. It says, in full:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
It doesn’t say “convicted” of insurrection. It doesn’t say “unless it makes Jonathan Chait uncomfortable.
