The core question the Supreme Court was considering Thursday regarding former President Donald Trump’s eligibility for the ballot in Colorado is whether the wording of Section 3 of the 14th Amendment applies to Trump and disqualifies him from holding office for what he did before and during the insurrection on Jan. 6, 2021.
“This case does not come down to mere prepositions,” Jason Murray, the lawyer for the Colorado voters who brought the case against Trump, told the justices during his opening statement. But the Supreme Court’s eventual decision, one of truly monumental proportions, will depend on how justices grapple with 15 key words within Section 3. And Thursday, even though many of them have professed a deep commitment to respecting the words of the Constitution, the justices seemed at times more interested in pretending those words have no meaning.
Here are the exact words of Section 3, which lays out the grounds for disqualification:
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.
In briefs filed ahead of Thursday’s arguments, Trump lawyer John Mitchell focused on three main phrases: “having previously taken an oath,” “as an officer of the United States” and “engaged in insurrection.” The first is the hinge on which the clause functions, applying disqualification only to certain people who had held office previously and sworn to support the Constitution. The second denotes which roles those former oath swearers must have held. And the final one, which you’d think would be self-explanatory, requires that the disqualified individual must have violated that oath through insurrection.
Whether the presidency counts as an “office ... under the United States” or “as an officer of the United States” determines whether the section’s twofold requirement applies to Trump. His lawyers have argued that the former might be the case but that the latter definitely is not, claiming that the drafters’ exclusion of the presidency and the vice presidency was purposeful and that the broader term doesn’t cover those offices. If Trump wasn’t an “officer of the United States,” then the oath he swore when he was inaugurated Jan. 20, 2017, doesn’t count toward invoking the 14th Amendment’s provisions. A district judge in Colorado agreed with that framing in November, allowing Trump to stay on the ballot, but the state’s Supreme Court reversed her decision, which set up Thursday’s historic hearing.
Leaning on the theory that he was never “an officer of the United States” is a convenient play for Trump, as he stands almost unique among our former presidents: He is the only one, aside from George Washington, to have never held any other office at the state or federal level before his 2017 inauguration. Justice Sonia Sotomayor noted that quirk in her questioning by asserting that Trump’s arguments in the case seemed almost “gerrymandered” to exclude only one person from the 14th Amendment’s prohibition. Mitchell took umbrage at that term but conceded that, aside from Trump and Washington, only John Adams would have been excluded (maybe) if the court accepted his argument that the president and the vice president don’t count.
It’s hard to tell which parts of Thursday’s argument will be given the greatest weight in the justices’ decision.
There were times when other justices seemed skeptical of the “office ... under the United States” / “as an officer of the United States” distinction Mitchell offered, but their side-eye wasn’t nearly as intense as what the conservative justices had for Murray, the Colorado voters’ lawyer. Justices Samuel Alito and Neil Gorsuch were more than willing to press him on why the president but not the speaker of the House counted as an “officer of the United States” under the 14th Amendment’s wording. Murray said the speaker doesn’t take a special constitutional oath outside of that sworn as a member of Congress, but the justices seemed unconvinced.
Left almost undealt with, though, on Thursday was whether Trump “engaged in insurrection.” The Colorado district court concluded that he had, and the Colorado Supreme Court upheld that finding. The U.S. Supreme Court is bound to accept the facts found in the lower courts rather than retry the whole case. But Barrett noted that while the factual findings in the Colorado case accepted the House Jan. 6 committee’s report, “another state court could reach an opposite conclusion.” Mitchell, stunningly, also argued that even if an avowed insurrectionist former officeholder tried to run again, without Congress’ passing a new law enforcing Section 3, no state could block that insurrectionist from the ballot.
It’s hard to tell which parts of Thursday’s argument will be given the greatest weight in the justices’ decision. There are probably enough who’ll agree Trump isn’t covered by the 14th Amendment because he isn’t an “officer,” as Mitchell argued. More of them might sign on to determine that states truly can’t unilaterally act to enforce Section 3 without federal legislation, punting the whole mess into Congress’ lap. But despite the clear intent of the men who wrote the 14th Amendment to keep insurrectionists out of office and Section 3’s obvious applicability to Trump, it seems all too likely that the Supreme Court will suddenly claim illiteracy.
