Now that the Colorado Supreme Court has used the 14th Amendment to bar former President Donald Trump from the state's primary and presidential ballot, the real action begins. With multiple lawsuits winding their way through other state courts, the U.S. Supreme Court is going to have to step in and resolve the matter one way or the other. And while a reversal of Colorado's ruling is more likely than not, we should not assume that the 6-3 conservative majority, which no longer needs him to pursue its reactionary ideological project, will rescue Trump from doom.
The substance of the case is straightforward. Section 3 of the 14th Amendment, ratified in the aftermath of the Civil War, bars from holding "any office, civil or military" individuals "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."
Trump, having unapologetically led the effort to overturn the results of the 2020 election, certainly meets the insurrection threshold. The question, at least in Colorado, was not whether he was part of an insurrection but whether the president is "an officer of the United States." A state district ruling that was reversed by yesterday's decision held that "for whatever reason the drafters of Section 3 did not intend to include a person who had only taken the presidential oath" in the amendment but agreed that Trump engaged in insurrection.
The question of whether the presidency is regarded as an 'officer of the United States" may prove pivotal, and Chief Justice John Roberts himself wrote an unrelated decision in 2010 that could be interpreted as siding with Trump's team. Throwing out the Colorado decision, and closing the file on using the 14th Amendment to disqualify Trump from the ballot anywhere by ruling that it does not apply to former presidents (unless they had previously served in some other state or federal capacity) would also have the advantage of allowing the Supreme Court to punt on the insurrection question altogether—thereby keeping happy the conservative billionaires who fund Clarence Thomas's lifestyle.
Of course, the idea that the president is not 'an officer of the United States' is absurd. As constitutional scholar Mark Graber put it, "No evidence exists that any member of Congress, member of a state legislature, political activist, journalist, or hopeless crank during the 1860s thought a president was not an officer of the United States or that a constitutional difference existed between an officer of the United States and an officer under the United States." But absurdity has never been a barrier to a Roberts Court ruling, which has, for example, established a states' rights regime only for conservative ideas and which has been wildly inconsistent in its application of its purported 'originalist' principles.
The Roberts Court, though, has been quite steady in one regard: whenever the exercise of raw conservative political power is at stake, the court has chosen to side with it. That's why the court, for example, gutted the Voting Rights Act in 2013 but legalized same-sex marriage the following year. It's why the Court, in Rucho v. Common Cause, decided that it would allow states to continue the practice of gerrymandering unless and until Congress put an end to it, and opened the floodgates to dark money in the reviled 2010 Citizens United case. It's why they ruled against public sector unions in Janus v. AFSCME. They aren't always right about which side of an issue benefits conservatives, but they can always be counted on to try to get there.
It's also why it is within the realm of possibility that the court might choose to allow Donald Trump to be ushered off the political stage forever via the 14th Amendment. It has ruled against Trump repeatedly—including allowing the release of his tax returns to House Democrats in 2022, and the dismissal of the Texas-led lawsuit seeking to have the results of the 2020 election thrown out in multiple states. Despite appointing three of the nine justices, Trump has not been able to count on the court doing his bidding, because the Roberts Court is the handmaiden not to any particular individual but to the conservative legal and political project in general.
There is no question that in this particular case, it is Trump's power, rather than that of the conservative movement, that is at stake. Other Republicans, in fact, sometimes poll better against President Biden—Nikki Haley, for example, has almost double Trump's lead over the president in the Real Clear Politics average—and some conservative justices who might want to retire soon, like Roberts, Alito, or Thomas, could gamble that they would have a better chance of being able to ride off into the sunset under a Republican president if Trump is not the nominee.
And it is certainly possible that there are several conservative justices who view Trump and Trumpism as an impediment, rather than an asset, to their lifelong ideological project. Would I go to the sportsbook tomorrow and put money on it? I certainly would not. But I also would not be overly confident that Trump will prevail.
David Faris is an associate professor of political science at Roosevelt University and the author of It's Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics. His writing has appeared in The Week, The Washington Post, The New Republic, Washington Monthly and more. You can find him on Twitter @davidmfaris.
The views expressed in this article are the writer's own.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
