The Supreme Court May Not Treat Donald Trump Like an Insurrectionist After All

The members of the Supreme Court of the United States are no historians. We can say this because days after January 6, historian Eric Foner was among the first to write that invoking Section 3 of the 14th Amendment, which bars anyone from future public office who violated their oath to defend the Constitution by engaging in an insurrection against the same, “would be the mildest punishment” Donald Trump could receive. As Congress barreled toward a second impeachment, Foner also told me in an email that applying Section 3 “would be quicker and simpler than impeachment.”

But on Thursday, as the justices considered whether a former president who is widely seen as the ringleader of an insurrection that will live in infamy should be barred from reelection—by operation of Section 3, which remains good law—there is every reason to believe that history won’t be their guide. Or that, for all practical purposes, independent of what Section 3 means, one state cannot set the rules of the next presidential election for the entire nation.

That was the tone and tenor of the two-hour-plus hearing in Trump v. Anderson, a constitutional challenge to Trump’s eligibility to appear on the Colorado presidential ballot that some have likened to this generation’s Brown v. Board of Education or the next Bush v. Gore. This explosive case calls to mind both the best and the worst of our constitutional history, past and recent, because the resulting decision, no matter the outcome, will break new ground in our understanding of the 14th Amendment. What’s on trial isn’t the course of the 2024 election or even one candidate’s political fortunes. Instead, what’s at stake is what remains of a centerpiece of the Constitution, ratified in the wake of a bloody conflict where the very meaning of citizenship, equality, and the future of our multiracial democracy was at stake. Without the 14th Amendment, there wouldn’t be a United States today.

Yet the gravity of what prompted the passage of this amendment, or else the ignominy of January 6 itself, was hardly top of mind for the justices. Instead, for the bulk of the hearing, what all nine of them, liberal and conservative, seemed to be looking for was an escape hatch—an off-ramp to avoid deciding whether Trump “engaged in insurrection,” the operative language that would disqualify him from seizing the presidency again. “Insurrection is a broad, broad term,” remarked Chief Justice John Roberts, as if worrying that attempting to define it may lend itself to future, frivolous attempts to disqualify other insurrectionists. If Colorado disqualifies Trump today, as its supreme court did in December, who’s to say a Republican-controlled state won’t move to disqualify a leading Democratic contender from a future contest?

To that concern, Jason Murray, the lawyer for the group of Republican and independent voters seeking Trump’s disqualification, had a simple answer: “There’s a reason Section 3 has been dormant for 150 years. And it’s because we haven’t seen anything like January 6th since Reconstruction.” In a world where law is politics and politics is law, one common worry, ever more pressing in our polarized times, is that weaponizing the Constitution’s little-known provisions could one day lead to an endless tit for tat. “A goodly number of states” would go the route of disqualifying candidates on the other side, Roberts seemed to warn.

In a roomful of lawyers and judges, Murray appeared to be the only one who understood the significance of not taking the disqualification clause seriously. When Justice Brett Kavanaugh suggested whether disqualifying Trump would have “the effect of disenfranchising voters to a significant degree”—an appeal to democracy that liberals and conservatives have voiced in the run-up to this hearing—Murray’s response seemed to roll off his tongue. “This case illustrates the danger of refusing to apply Section 3 as written because the reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him,” he said. “And the Constitution doesn’t require that he be given another chance.”

Indeed, historians and constitutional scholars have contended that the language of the disqualification clause, like other parts of the 14th Amendment, is “self-executing”—that is, you don’t need an act of Congress to give it the force of law. Under this view, Trump disqualified himself from office the moment he pulled the levers of power to stay in power. Yet several justices didn’t seem convinced by this argument, appearing sympathetic to the view that only a federal law empowering, say, the Justice Department to take action against insurrectionists would be permissible, and not states taking matters into their own hands. In fact, that’s what Congress did in 1870, when it gave federal prosecutors authority to go after Confederate officeholders, only to repeal that authority in the 1940s.

One person who knows Reconstruction history well, because in other contexts she has excelled at explaining it, is Justice Ketanji Brown Jackson. Yet, surprisingly, even she didn’t seem convinced that Section 3 covers Trump and his actions on January 6—or that of any president for that matter. For one, Jackson expressed skepticism that the clause, which doesn’t mention the presidency explicitly, was meant to cover the highest office in the land. Instead, she suggested that the purpose of the provision was “preventing the South from rising again”—by disqualifying state-level officeholders from ever controlling their local governments. The “president is not there” in the text of Section 3, she said.