What direction is the Supreme Court leaning in its case on keeping former President Trump off ballots?

Thursday morning, the U.S. Supreme Court heard oral arguments in Trump v. Anderson, the case about whether former President Donald Trump is disqualified in running for office by the 14th Amendment for his role in Jan. 6, 2021, events which Trump’s attorney called “shameful.”

Based on how much the justices engaged with the attorneys, and the substance of their questions and statements, the most likely outcome is that the court will rule in favor of Trump, probably by a wide margin.

Every justice but perhaps one asked pointed questions of the attorneys representing the Colorado voters and the Colorado secretary of state, who have sought to disqualify Trump from the ballot. Those questions, which were often just statements, reflected skepticism of the position that Trump could be disqualified by the state.

While there was also some pushback against the attorney representing the former president, that was not as universal. And studies have shown that the quantity and quality of the engagement by the justices with the differing sides in oral argument often predicts how the justices will vote.

The historic case led to an usually long argument — over two hours. And yet, despite that length, the justices had little appetite for discussing whether Trump engaged in insurrection. Only once did a justice ask a question related to that (Justice Ketanji Brown Jackson), and that question was whether Trump was conceding that Jan. 6 was an insurrection, to which his attorney said he was not. Not once did the justices bring up the issue of whether he had engaged in insurrection.

Instead, the justices mainly focused on two technical legal issues: whether Section 3 of the 14th Amendment is self-executing (or, in other words, whether Congress must pass legislation to enforce it), and whether the president is an officer covered by Section 3.

Both of these questions are relevant to the type of insurrectionist who would be disqualified and also the office or position one can be disqualified from holding. One or both of those issues will almost certainly be the grounds for the Supreme Court’s decision, with the first the most likely candidate.

Much of this discussion was focused on constitutional text, framers’ intent, precedent, historical context and subsequent history. But there was also discussion about some of the consequences of ruling that states may decide whether a presidential candidate has engaged in insurrection and thus can be barred from the ballot.

Two consequences in particular seemed to trouble the court. First, would a ruling in favor of the states unleash chaos, with some states barring Trump and other states barring President Joe Biden in response? Second, on a close call where the constitutional text is ambiguous, a ruling that disqualified Trump would arguably disenfranchise tens of millions of voters. On that basis, shouldn’t the court err on the side of democracy?

However, the attorney for the voters urged the Supreme Court to reach the insurrection issue. He noted that numerous briefs filed by other interested parties (amici) noted that Congress, when counting electoral votes in January 2025, could decide to not count any votes for Trump if, in Congress’ judgment, he was disqualified under Section 3. Particularly if Trump won the Electoral College, this could cause a constitutional crisis because tens of millions of Americans would feel like Congress had hijacked the election and negated their votes.

But the justices still seemed disinterested in the insurrection issue, and, as previously noted, they would have to reach it and every other issue in the case if they are to rule against Trump.

With oral arguments now over, the burning question is when we will learn the court’s decision. First, the justices will meet no later than Friday morning in conference to cast their votes. Starting with the Chief Justice and proceeding through order of seniority to the newest justice, each will state how they intend to vote. Additionally, there may be some discussion of the issues or explanation of their votes. Then, the most senior justice in the majority will assign a justice to write the majority opinion. (The chief justice is considered the most senior justice even if someone has been on the court longer.)

Normally, a case of this complexity and importance will take months to write, as there will be various versions of the majority opinion as it responds to comments from the other justices and to separate concurring or dissenting opinions, which usually aren’t drafted until the first draft of the majority opinion is circulated to the justices. But ballots need to be printed and primaries conducted. Given this case’s urgency, the justices will likely make public their decision much sooner.

One possibility, rare but not unprecedented, would be for the court to announce its decision in the next day or so, and then state that an opinion explaining its reasoning will follow. It did this once before with a case during World War II involving the execution of Nazi spies and attempted saboteurs. Another possibility is a short, per curiam opinion (meaning no single justice’s name is designated as the opinion’s author) that is released in a week or two. The court took this route in some of the COVID-19 cases.

Should Trump prevail in the case, which seems likely after Thursday’s arguments, states would not be able to remove his name from their primary ballots, and, should he win the Republican nomination, the November general election ballots.

But depending on the grounds for the Supreme Court’s decision, Congress could still (at least theoretically, if practically unlikely) pass legislation implementing an enforcement mechanism that could then be used to disqualify Trump, if done quickly enough.

And if the court does not address the insurrection issue, even a victory for Trump here could leave the door open to Congress disqualifying Trump through refusing to count electoral votes for him next January.