The U.S. Supreme Court unanimously held that Colorado cannot keep former President Donald Trump off of the 2024 presidential primary ballot. This was not surprising, nor was the unanimous holding.
Traditionally, the Supreme Court rules on contentious political issues with as much unanimity as possible (there are notable exceptions, of course). The Supreme Court justices, who are well aware of the public's decreasing trust in it as an institution, were striving to reach an opinion all of them could agree on. This is also likely the reason the court delivered an unsigned opinion.
They almost got there. In a 9-0 decision, the Court unanimously overturned the Colorado Supreme Court decision banning former President Trump from the ballot. The main contention between the judges was not the result reached, but how expansive the decision was.
Let’s go over the decision and examine where the court agrees, where it disagrees, and what it means for the country.
The Basics
By now, you probably know that Section 3 of the 14th Amendment prohibits anyone who has been convicted of insurrection from running for office. Enacted by Congress after the Civil War, it was designed to keep Confederate soldiers and officers from holding positions of authority in the postwar government. No presidential candidate has ever been disqualified under this provision, however.
The question before the court was, therefore, whether a state could use this provision to bar a candidate from federal office. At oral argument, the justices focused on the danger of states reaching differing conclusions about a candidate, leading to a patchwork and unworkable ballot for voters. This was the rationale all nine justices used to overturn the Colorado Supreme Court's decision.
But the majority opinion did more and went on to decide how and when a candidate could be barred under this provision. By a 5-4 majority, SCOTUS held that states cannot prohibit federal candidates from appearing on the ballot without federal legislative approval. As the majority put it, "Congress, rather than the States, [is] responsible for enforcing Section 3 against federal officeholders and candidates."
However, states can place these restrictions on their own state ballots. This means Colorado could keep a January 6 participant in the storming of the U.S. Capitol off of the ballot for governor or state representative but not for president or Congress.
The Concurring Opinions
As important as the unanimous decision was, a lot of subsequent coverage of the decision has been about the two concurring opinions. In a concurring opinion, a judge agrees with the holding of the court but writes separately to either disagree with the method used to reach the conclusion or to expand on a point of the case.
Justices Amy Coney Barrett, Ketanji Brown Jackson, Sonia Sotomayor, and Elena Kagan felt that the majority went too far in its decision. Rather than hold that only federal legislative action could result in states barring candidates under Section 3, the concurring justices would have simply said "no" to Colorado keeping Trump off of the ballot and left it at that. Because Section 3, as part of the Reconstruction-Era Amendments, was intended to give more power to the federal government and less to the states, the concurring justices would simply have found that Section 3 did not silently grant states this power in contradiction to the aims of the Amendments as a whole.
Justice Barret wrote separately not because she disagreed with the other concurrence but rather to curtly say that Justices Brown, Kagan, and Sotomayor were too strident in their writing. "All nine Justices agree on the outcome of this case. That is the message Americans should take home," Barrett wrote in closing.
Takeaways
This decision ends the attempts by Colorado and several other states to keep Trump off of the primary ballot in their states. Trump’s eligibility in all states, including the Colorado primary, is secured. But there remain several novel legal issues facing Trump as a candidate, one of which the Supreme Court will decide on shortly.
Next month, SCOTUS will decide whether a president is immune from criminal prosecution for acts committed during their presidency without first being impeached by Congress.
However, even if SCOTUS does decide Trump is not immune from criminal prosecution, he could still be elected president if convicted in one of his four ongoing criminal trials. Should that scenario come to pass, there could be even more novel legal issues to consider. For example: Can Presidents pardon themselves?
The ruling on this case is an important result by any measure, and the majority's decision to specify when Section 3 can be invoked could impact future elections for the White House. But even so, legal battles remain ahead for both Trump and the Supreme Court regarding the 2024 election.
Related Resources
- Is a President Immune from Prosecution? Ask the Supreme Court (FindLaw's Courtside)
- A Bump (Stock) in the Road for SCOTUS? Court Considers Gun Regulation Statute (FindLaw's Federal Courts)
- Is SCOTUS About to Overturn Chevron? (FindLaw's Federal Courts)
