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Greetings, Court Fans!

Yesterday, the Supreme Court issued its first major decision of the term in Trump v. Anderson (No. 23-719). To the surprise of almost no one, the Court unanimously reversed the Colorado Supreme Court’s removal of candidate Trump from the ballot in Colorado’s upcoming presidential primary, clearing the way for Trump to appear on the ballot not only in Colorado but also in the other states (Maine and Illinois, to name a few) where similar suits were pending. But to the surprise of many, the Court’s unsigned majority opinion went further than it needed to, suggesting (and maybe even holding?) that Section Three of the Fourteenth Amendment can be enforced only through congressional implementing legislation. That issue prompted the only disagreement at the Court, with four Justices separately concurring to cast doubt on this aspect of the majority’s reasoning, while at the same time raising questions about just what it was the majority decision says. Regardless, the result is clear: Trump is eligible for the ballot both in Colorado and nationwide.

The Fourteenth Amendment was ratified in 1868, soon after the Civil War. Its most important provisions, all found in Section One, were aimed at preventing states from denying civil rights to the newly freed slaves. But the Amendment responded to the Civil War in other ways, including with Section Three, which seemingly precludes state or federal officeholders who joined the Confederacy from ever again holding state or federal office. It provides that “no person shall” hold various state or federal offices if that person “having previously taken an oath” to support the Constitution while serving as a member of Congress, “an officer of the United States,” or as a member or official of other government branches “engaged in insurrection or rebellion.” It also specifies that Congress may, by vote of two-thirds of each House, remove that disability. And Section Five of the Fourteenth Amendment empowers Congress to “enforce, by appropriate legislation, the provisions” of the Fourteenth Amendment, including Section Three.

Last year, when it became abundantly obvious that former President Trump wished to once again become current President Trump by running in the 2024 election, voters around the country filed various lawsuits and administrative petitions asking for Trump to be disqualified from their states’ primary- and general-election ballots under Section Three. They argued that his involvement in the events of January 6, which culminated in a mob of Trump supporters storming the Capitol to try to disrupt certification of the electoral college results, amounted to “engaging in insurrection.” While most courts and elections officials rejected those claims for one reason or another, these arguments found a more receptive audience in Colorado. There, a state trial court held a five-day trial and found as a matter of fact that Trump had engaged in insurrection for purposes of Section Three. But that trial court nonetheless declined to order him removed from the state’s ballot, concluding that the President—the office Trump held at the time of the alleged insurrection—is not an “officer of the United States,” so Section Three does not disqualify presidents who engaged in insurrection. The Colorado Supreme Court soon reversed, affirming the trial court’s factual findings but holding that then President Trump was an officer of the United States on January 6. It therefore ordered the Secretary of State not to list Trump’s name on the ballot for the upcoming presidential primary. But it stayed that order to give Trump time to seek Supreme Court review. He promptly did so, and the Supreme Court granted certiorari within days, setting down the case for expedited briefing and argument in early February.

Given the way oral argument went, most Court watchers were predicting a Trump victory, probably even a unanimous one. But prognosticators were less confident about how the Court would decide the case: Would it follow the trial court and hold that the President was not an officer? Would it decide that Trump’s conduct on January 6 did not amount to “insurrection,” say because his speech on January 6 was not a direct incitement to violence? Or would it hold that the Fourteenth Amendment did not empower Colorado to directly enforce Section Three by removing Trump from the ballot? A unanimous Court opted for the last approach, though just why that is so and what its holding means is not exactly clear.

We’ll start with the unsigned majority opinion, seemingly joined in full by the Chief and Justices Thomas, Alito, Gorsuch, and Kavanaugh, and in part by Justice Barrett. They begin by observing that Section 3 works by imposing “a preventative and severe penalty,” namely, disqualification from holding state or federal offices, rather than by granting a right available to everyone. This basic structure requires someone to make a determination that Section Three applies to a particular person before the disqualification takes effect. But who and how? Section Three itself does not say. But in the majority’s view, the answer lies in Section Five, which empowers Congress to pass “appropriate legislation” to enforce all the provisions of the Fourteenth Amendment. The majority thus suggests, without quite saying so explicitly, that Section Three can be enforced only through federal legislation.

Having interpreted Section Three in this way, the majority then turns to the question of whether states also have authority to enforce Section Three. As to would-be state office holders, the Court concluded that states could disqualify persons from holding or attempting to hold office. But when it comes to federal offices, particularly the Presidency, the states’ responsibility is more limited. Federal officers owe their existence and function to the United States as a whole, so granting individual states some authority to remove or disqualify sitting or prospective office holders based on that state’s determination that the official engaged in insurrection would be at odds with the broader constitutional design. Nothing in Section Three’s text suggests that states can do so, and there is no established tradition along those lines. Finally, the Court observed that allowing state enforcement of Section Three as to the office of the Presidency in particular raised “heightened concerns,” namely that states could reach conflicting determinations as to whether a particular candidate had engaged in insurrection, resulting in a “patchwork” of enforcement decisions that would undermine the national character of the Presidency. For these reasons, the Court reversed the Colorado Supreme Court’s decision that Colorado had the authority to disqualify Trump from the ballot based on Section Three.

In several respects, the unsigned per curiam opinion reads like one that was written in just a few short weeks and whose precise reasoning was somewhat in flux right up until its release. The two brief concurrences drive that home. In the first, Justice Barrett concurred as to the Court’s judgment and joined the part of the majority opinion holding that states lack the power to enforce Section Three by disqualifying would-be federal officeholders from the ballot. But she would stop there, finding it unnecessary to address the “complicated question” of whether federal legislation is the exclusive means for enforcing Section Three.

In the second, the Court’s three liberal justices—Sotomayor, Kagan, and Jackson—jointly concurred in the judgment only. Much like Justice Barrett, they agree that allowing states to disqualify presidential candidates based on their individual determinations that a candidate engaged in insurrection is inconsistent with the federal nature of the Presidency. And like Justice Barrett, they would stop there, declining to consider how Section Three can be enforced by other actors, such as Congress. But unlike Justice Barrett, they are more pointed in their criticism of the majority, taking direct issue with the majority’s arguable conclusion that Section Three requires implementing legislation and cannot be enforced more directly (say, by members of Congress refusing to accept electoral votes for a candidate found to have engaged in insurrection). But at times, this jointly authored concurrence portrays the majority’s discussion of these points as more conclusive than that opinion’s actual language seems to be.

Perhaps the explanation for this disconnect between the various opinions can be found in document metadata. As some more technologically adept commentators have observed, buried in the metadata of the liberals’ concurrence are suggestions that it started out as a partial dissent (one written by Justice Sotomayor rather than jointly authored). But what exactly was Justice Sotomayor dissenting from if, as is seen in the final opinions, she agreed with the majority’s ultimate result? While several theories have already been floated for how the Justices’ draft opinions may have evolved in the few weeks since the case was argued, we would speculate that the initial draft of the per curiam majority opinion took a stronger line about congressional legislation being the only way to enforce Section Three. That stronger statement prompted Sotomayor to describe her initial draft as a partial dissent. But in the drafting process, the parties’ positions converged, with the majority’s discussion becoming a bit more dicta-like, and the liberals coalescing around a unified concurrence. In a normal case, the Justices would have had time to refine their separate decisions, making them a bit more responsive. But in the rush to get them out the door, they remained a bit less polished than the Court’s usual output, resulting in a set of opinions that sometimes seem to be talking past each other.

Setting aside all the speculating about how this particular piece of sausage got made, the result is clear. Trump can run in Colorado. And he can run anywhere else, as no state has the authority to disqualify him (or seemingly any other federal officeholder) under Section Three. Whether Congress itself could disqualify him if he were to win, and how it would have to go about doing so if it wished, remains somewhat less clear.