WASHINGTON — In ruling that states cannot kick Donald Trump off the ballot, the Supreme Court placed significant limits on any effort — including by Congress — to prevent the former president from returning to office.
Should Trump win the presidential election and lawmakers then seek to not certify the results and prevent him from taking office because he “engaged in insurrection” under Section 3 of the Constitution’s 14th Amendment, the decision could foreclose that action.
It is on that point that the court — notionally unanimous in ruling for Trump despite its 6-3 conservative majority — appeared to be divided, with the three liberal justices vehemently objecting to the apparent straitjacket the decision enforced on Congress.
Justice Amy Coney Barrett, a conservative, wrote her own opinion saying she also believed the court had decided issues it did not need to resolve but she did not join the liberal justices’ separate opinion.
Apparently, without the support of the four women justices, a five-justice majority said that Congress had to act in specific ways to enforce section 3.
“This gives the Supreme Court major power to second guess any congressional decision over enforcement of Section 3,” Rick Hasen, an election law expert at UCLA School of Law, wrote immediately after the ruling.
The Colorado Supreme Court had found Trump had violated the provision in contesting the 2020 presidential election results in actions that ended with the Jan. 6 attack on the Capitol.
In ruling for Trump, the U.S. Supreme Court specified that anything Congress does must be specifically tailored to addressing section 3, an implicit warning that broad legislation could be struck down.
“Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming president,” the liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, wrote on their separate opinion.
By weighing in on the role of Congress, “the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office,” they added.
One sentence in particular attracted the attention of legal experts, with the liberal justices writing that the majority was seemingly “ruling out enforcement under general federal statutes requiring the government comply with the law.”
Several observers said this may be a reference to Congress’ role in certifying the presidential election results should Trump win in November, which is now governed by the Electoral Count Reform Act enacted in 2022 with the aim of preventing another Jan. 6.
The law includes language saying that Congress can refuse to count electoral votes that are not “regularly given.” That could be interpreted to apply to a winning candidate who members of Congress believe is not eligible to serve under section 3.
Derek Muller, an election law expert at Notre Dame Law School, said it seemed the majority wanted to “close that door.”
But, he added, “the court is speaking somewhat opaquely here, as if it does not want to reveal the true substance of the disagreement.”
Jason Murray, who argued the Colorado case at the Supreme Court on behalf of the voters who wanted Trump kicked off the ballot, said he also thought the court may be referring to the Electoral Count Reform Act.
“It seems to me that one thing that the liberals might be referring to is the possibility that Congress might on January 6, 2025 refuse to count votes that were cast for former President Trump,” he added.
Not everyone agreed with that interpretation, with Richard Pildes, a professor at New York University School of Law, saying the liberal justices may have been referring to the potential for legal challenges about Trump’s authority as president if he were in office again.
If the court was addressing the counting of electoral college votes “they could easily have mentioned that if that’s what they meant,” he added.
Hasen wrote that the ruling means that if Trump wins the election and Congress tries to disqualify him, the Supreme Court “will have the last word.” In the meantime, “we may well have a nasty, nasty post-election period,” he added.
