President Donald Trump greets Supreme Court Chief Justice John Roberts before the 2020 State of the Union.Leah Millis/CNP/ZUMA
The Supreme Court on Monday allowed Donald Trump to appear on every state’s ballot, despite a constitutional provision barring from office insurrectionists who had previously sworn to support the Constitution. All nine justices agreed that states have no power to bar presidential candidates under Section 3 of the 14th amendment. But five of the six Republican-appointed justices went much further. This narrow majority ruled that only Congress can create the procedure for disqualifying insurrectionists from federal office—and they reserved considerable power for the Supreme Court to make the final decision.
The conservative majority’s reasoning in the ballot case was starkly inconsistent with how the court has interpreted other parts of the 14th Amendment in recent years. But the outcome is a familiar one. Time and again, the right-leaning justices have found a way for their 14th Amendment jurisprudence to limit the reach of this landmark constitutional amendment.
The 14th Amendment is the basis for America’s pluralistic democracy, guaranteeing equal rights and due process protections for all citizens. In Section 3, the Amendment bars insurrectionists from controlling the government: No one who has taken an oath to support the Constitution, having then broken that oath and rebelled against the government, can again hold office. Following secession and the Civil War, this was a failsafe measure for democratic self-preservation. And now it is much harder to enforce.
Monday’s unsigned opinion points to the original purpose of the 14th Amendment and to the unique powers of Congress to enforce that amendment. This is indisputable, but it is at odds with the court’s recent decisions in voting rights cases, in which the same justices have empowered states at the cost of Congress’ power and the rights of individuals to cast a ballot.
As Trump and the MAGA movement threaten the pillars of American democracy, the Supreme Court majority is engaged not only in the process of rolling back voting rights, but in undermining other protections for people of color, for LGBT people, for women, and for workers. Many of the rights on the court’s chopping block are undergirded by the 14th Amendment’s guarantees of equal protection of the law and of due process. The promise that an insurrectionist should not run the country is the just latest part of the 14th Amendment kneecapped by this court.
The Section 3 case comes from Colorado, where the state’s Supreme Court ordered Trump off the Republican primary ballot. That court found him ineligible to be president under the 14th Amendment mandate that “no person shall…hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath…as an officer of the United States…shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
During oral arguments, Chief Justice John Roberts raised the historical point that the 14th Amendment granted significant new powers to the federal government, redefining the relationship between the states and Washington, DC. “The whole point of the Fourteenth Amendment was to restrict state power, right?” Roberts said. “States shall not abridge privilege [or] immunity, they won’t deprive people of property without due process, they won’t deny equal protection. And on the other hand, it augmented federal power…Congress has the power to enforce it.” Roberts then reasoned that allowing the states, including Confederate states, to enforce Section 3 would be “at war with the thrust of the Fourteenth Amendment and very ahistorical.”
Monday’s unsigned opinion uses similar language. “Under the Amendment, States cannot abridge privileges or immunities, deprive persons of life, liberty, or property without due process, deny equal protection, or deny male inhabitants the right to vote (without thereby suffering reduced representation in the House),” it reads. Allowing the states to enforce Section 3 against federal office-seekers “would invert the Fourteenth Amendment’s rebalancing of federal and state power.”
Despite the opinion’s paean to congressional power in this arena, the court then goes on to limit how Congress can enforce Section 3. “Any congressional legislation enforcing Section 3 must…reflect ‘congruence and proportionality’ between preventing or remedying that conduct ‘and the means adopted to that end,’” the opinion says. As election law expert Rick Hasen noted, “this gives the Supreme Court major power to second guess any congressional decision over enforcement of Section 3.”
“What this means is that if Congress tries to disqualify Trump, either before or after the election (which Congress may well try to do), the Supreme Court will have the last word on doing so,” Hasen explained. “We may well have a nasty, nasty post-election period in which Congress tries to disqualify Trump but the Supreme Court says Congress exceeded its powers.”
The justices’ concern about the balance between federal and state power in matters of civil rights was nowhere to be found when the Roberts Court gutted the Voting Rights Act in 2013. In that case, Roberts wrote the majority opinion, declaring that Congress had exceeded its enforcement powers under the 14th and 15th Amendments. In practice, Roberts’ opinion gave states with ugly histories of discriminatory voting laws renewed power to disenfranchise their citizens. That ruling depressed turnout among nonwhite voters, according to a new study from the Brennan Center for Justice.
During oral argument in the Colorado case, Justice Brett Kavanaugh similarly went all-in on limiting Section 3 in the name of democracy. “What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide?” he asked the lawyer arguing to keep Trump off of Colorado’s ballot. “Because your position has the effect of disenfranchising voters to a significant degree…What about the background principle, if you agree, of democracy?”
The invocation of voting rights here is ironic given Kavanuagh’s record. He wasn’t on the court when it rolled back the Voting Rights Act back in 2013, but he did join the majority eight years later when it further curtailed the law, making it still easier for states to disenfranchise voters.
In response to the court’s decision Monday, Georgetown law professor Josh Chafetz pointed out that SCOTUS seemed to have suddenly rediscovered Congress’ power under the post-Civil-War Reconstruction amendments, including Section 5 of the 14th Amendment, which gives Congress the authority to pass legislation to enforce the amendment’s provisions.
Pretty amazing upside-downworld stuff: when Congress *actually* tries to legislate under sec. 5 (or it's 13th or 15th Amendment counterparts), the justices strike it down. Sec. 5 is only usable as a cudgel against other institutions when Congress is silent, apparently. https://t.co/jOnjR44hn2
— Josh Chafetz (@joshchafetz) March 4, 2024
Monday’s majority opinion points out that allowing state enforcement of the Section 3 disqualification provision would have created a chaotic system in which federal candidates appear on the ballot in some states but not others, with different procedures and standards for removal in each state. “The ‘patchwork’ that would likely result from state enforcement would ‘sever the direct link that the Framers found so critical between the National Government and the people of the United States’ as a whole,” the opinion states. “But in a Presidential election ‘the impact of the votes cast in each State is affected by the votes cast’— or, in this case, the votes not allowed to be cast—’for the various candidates in other States.’”
Despite their objections to the majority opinion in the Colorado case, the three Democratic-appointed justices agreed with the majority’s general rationale for preventing states from enforcing Section 3 for federal candidates. “Section 3 marked the first time the Constitution placed substantive limits on a State’s authority to choose its own officials,” their concurrence reads. “Given that context, it would defy logic for Section 3 to give States new powers to determine who may hold the Presidency.”
This conclusion by all nine justices, however, is not in line with the court’s record in voting rights cases. The court has given extreme deference to states when it comes to permitting restrictive voter ID laws, gerrymandered congressional maps, voter roll purges, and felon disenfranchisement schemes, among other voter suppression measures. It’s likely that these laws, with the court’s blessing, have altered the outcomes of presidential and congressional elections, in which all Americans have a stake.
Technically, Monday’s ruling exempts Section 3 from the extensive powers that the Constitution otherwise grants to states to run federal elections, distinguishing the court’s past voting rights decisions from the Colorado case. But it seems very much in line with the court’s broader direction in voting cases. States remain able to block millions of voters from the polls, affecting who holds federal office. Yet that power disappears when it comes to Section 3. For enforcing Section 3, inconsistency across states is intolerable. When it comes to disenfranchising voters, it is allowable.
Monday’s ruling is also notable for how the majority goes out of its way to limit the power of Section 3. The entire court agreed that states could not enforce that provision. It could have stopped there and simply allowed Trump to remain on the ballot nationwide. Instead, five conservative justices went further and decided for the first time exactly how Congress—and Congress alone—could enforce Section 3. In response, the three liberal justices point out, the court is paving the way for Trump and other possible insurrectionists to hold office again. “The majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office,” the liberals write. “Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.”
It’s a stark warning of what the court, under the guise of upholding the 14th Amendment, is actually doing.
