What the Supreme Court Will Do With Trump’s Colorado Ballot Disqualification

Last week, the Colorado Supreme Court issued a major 4–3 decision that former President Donald Trump is barred from the appearing on the state’s Republican primary ballot under Section 3 of the 14^th Amendment, which bars insurrectionists from holding office. The ruling has been met with a mixed response from serious constitutional law scholars and is likely to head to the U.S. Supreme Court in the weeks ahead.

On this week’s Amicus, Dahlia Lithwick and Jeremy Stahl discussed the repercussions of the Colorado case for Trump’s presidential campaign, the 2024 election, the Supreme Court, and our teetering constitutional democracy. This conversation has been edited and condensed for clarity.

Dahlia Lithwick: I think in some sense the bombshell story this week is of course the ruling that came out of the Supreme Court of Colorado on Tuesday night.

This is a big, honking deal. Trump’s not going to be on the primary ballot in January unless the case is appealed to SCOTUS, in which case I guess he will be.

Walk us through this case. It’s a case we’ve talked about a tiny little bit. It’s got iterations in several other states. But just walk us through, if you would, the portion of the 14^th Amendment at issue and what it is that the Colorado Supreme Court determined this week.

Jeremy Stahl: We’re going to learn more very soon about what actually comes of this, because it has to go to the Supreme Court. The question at issue here is Section 3 of the 14^th Amendment, and this was a Reconstruction-era amendment that was meant to address the Confederate politicians who had previously been part of the U.S. government who betrayed their oaths and rebelled against the U.S. government and make sure they could never hold office again. It says that if you participated in insurrection, you’re not allowed to be a member of Congress, you’re not allowed to be a senator, and you’re not allowed to hold an office. This case has kind of come down on these very technical questions of what is an office of the United States, because it doesn’t explicitly list “president” as a banned position—it lists “senator,” it lists “a member of Congress,” but it doesn’t list “president.” What is “an office of the United States” in terms of having sworn an oath previously under that office? So they’re these very technical and legalistic questions: Is this really meant to include the president? Is it not?

The district court found that it’s not meant to include the president. The Supreme Court of Colorado found that yes, it is meant to include the president, and by the way, Donald Trump did participate in an insurrection on Jan. 6, and therefore he cannot be on the primary ballot for the Republican Party in a few weeks.

This is a big deal because, as you’ve just suggested, a lot of these are questions of first impression. What is an insurrection? What is an “officer”? What does it mean to even intimate that a court could do this? Is it self-executing? Did an act of Congress need to somehow impose this? Right? There’s a ton of moving parts, but I think that there’s some pieces of this that dampen some of the big dealings. One is not hugely important because Colorado is a very blue state. By its own terms, the decision says, the minute this is appealed to the Supreme Court, we pause this and the date to get this thing on the ballot is coming. So it’s almost impossible to see Donald Trump not actually appearing on the primary ballot.

A lot of people think this is the worst possible way to get Donald Trump out of the running for the Republican primary. The court still has to take it, right? The Supreme Court does not have the option, I think, to just let this go.

That’s absolutely true. This is an issue that came out of the world of really smart law professors. J. Michael Luttig, conservative former appellate judge who is very highly regarded, is a big endorser of this idea.

At the same time, every other previous state that has considered this question has rejected it. And the Colorado Supreme Court, which is made up of seven judges—and all seven judges were appointed by Democrats—agreed to this idea and ruled in favor of keeping Trump off the ballot by the slimmest possible 4–3 margin, which means you had three Democratic-appointed justices who thought that this was bad as a matter of constitutional law and just a bad idea.

The consequences of this actually are quite real and quite significant because if Donald Trump was not on the ballot of a single state and on all other 49 ballots, that would just cause so much chaos. And I think even the people who have endorsed this idea understand the chaos that that could cause. With all of those things considered, I think it’s obvious that the Supreme Court has to make a decision one way or another.

And I’m curious, given your depth of knowledge and understanding about the Supreme Court as an institution, and particularly this court, how you think they’re going to take this on.

There are almost two axes here. One is: There’s a time crunch, right? This is not a thing that can lollygag along. I think there’s some folks who are saying that Donald Trump will wait until the last possible second to appeal it. And then that pauses the ruling, and then the court can take it, and then at some point it’s moot because he’s already on the ballot, right?

Like, there’s a time component of this. And when we talk about Jack Smith and his trying to hustle cases to the Supreme Court, this huge time clock is a huge part of the problem, right? Because there is almost no way to get ahead of this—ballots have to be printed, and we remember that from the last election.

I completely agree with almost every pundit around who says there are just not five votes on the U.S. Supreme Court to affirm what just happened in Colorado. I just think it’s—they’re really hard questions. They’re questions of first impression. As you said, the dissents are persuasive in this case.

These are not political hacky opinions. These are hard questions that have to be taken on the merits.

This is the problem of this kind of “Let a thousand flowers bloom” moment. We’re in so many other cases that are scrambling onto the docket that I’m not completely sure that the Supreme Court is going to rule in favor of the Colorado Supreme Court, but I’m also not sure this is the exigent case. There’s so much other stuff coming, and the court—I always say this—looks at the whole board. They always look at the whole board, and there’s a lot of other stuff on the board, not just this. And so I think we get super myopic and we think there’s nothing else knocking on John Roberts’ door. There’s a crap-ton of other stuff coming.

I think John Roberts and the justices are gonna have to pick really, really carefully. Which of the shock-wave cases they’re gonna take and which they’re going to, um, use, if any, to be the reason that Donald Trump doesn’t get to be the president.

I was particularly struck by the dissent. You’ve just laid out a beautiful big picture and, like, high-level look at what to expect of the Supreme Court. Just narrowing in on this actual ruling and the dissent itself, the dissents were really good. And there was one argument specifically in the dissent that I thought was particularly strong. That was that this was a five-day bench trial that determined that Donald Trump committed insurrection. This [was done under a] very limited period of time, according to this specific statute in Colorado that says if a person is not qualified to be on the ballot, there needs to be a quick trial—it’s normally meant for if they’re not over the age of 35 or they’re not a U.S. citizen. There needs to be a quick, five-day trial that determines that.

If this is the case, and then they need to be taken off the ballot, a five-day bench trial to determine whether or not somebody committed insurrection does not seem like a particularly—and the dissent said this too, whatever we think of what happened on Jan. 6 and what Donald Trump did on Jan. 6—it does not seem like a high enough bar. It does not seem like a high enough standard for one state to have one judge hold a five-day trial and say, “Bye-bye.” And it affects the rest of the country. That, to me, is a very, very persuasive argument. It’s not an originalist argument. It’s not an argument based on mind-reading the Framers, but that’s supposedly what we want.

We want arguments grounded in what the real impact of something is going to be today.

I’ve spent the hours since reading the opinion, reading the opinion makers, and there are such interesting splits amongst a community of people who really think about Donald Trump and insurrection. Like, there’s no question among them that he did the thing. Ian Millhiser at Vox sort of makes the point you made, that this is just way too premature. Larry Lessig had a pretty compelling normative piece in Slate saying, “This is not how we’re going to decide elections.”

Everybody kind of has a take, and it feels to me like 90 percent of these takes have nothing to do with the law and the rule of law. They have to do with this meta conversation about preserving democracy. And all of the spinning plates of Are we going to make his followers mad? Maybe it wouldn’t be best if the courts made them mad because they really hate the courts. Maybe it’s better if this gets resolved at the polling places. Except, as Ian Bassin writes, Oh my God, this is what the 14^th Amendment was written for. So that if insurrectionists committed insurrection, we didn’t have to have them on the ballot. So there is just a whole interesting range of unpredictable responses to this. And I find myself very much in the camp of If you believe in the rule of law, you don’t make arguments about why this time the president gets out from under it.

But I’m very curious what you think, because I also know there are merits pieces of this. That are, as you say, perfectly plausible reasons to say this isn’t the vehicle.

I am thinking of this from the politics end of it, but if you want rule of law, there is a statute that you can be criminally charged with insurrection. Donald Trump was not charged with that statute. And one element of the punishment for that statute is, if you’re convicted under that statute, you lose the right to hold office. There’s your vehicle, if you want a vehicle and a rule of law for getting Trump off the ballot via Section 3 of the 14^th Amendment.

Jack Smith could have charged him with that, and he could have a criminal trial. Jack Smith chose not to for various reasons, but there’s the rule-of-law vehicle to me.

To me, the political question is just so enormous and horrifying. Donald Trump thrives in chaos. The chaos of one state being able to remove him from the ballot, even in just that state—but in every state in the country. The Texas lieutenant governor has already said that he wants to remove Joe Biden from the ballot in response to this. Do we think that the Texas lieutenant governor is going to listen to a Supreme Court that says “Don’t count write-in votes for Donald Trump—we forbid you to do it”? Or that the House of Representatives is going to look at this and say, “Donald Trump ran a campaign even though he was forbidden from the ballot; he got so many write-in votes, they were counted, and we’re just going to ignore that and allow Joe Biden to retain the presidency”?

It’s chaos. The notion of this idea and the fruits of this idea would be chaos. Donald Trump thrives in chaos. I think that that alone is a reason why the Supreme Court—which, as you’ve noted many times before, is very much a political institution—is going to say pass.