What Scotus Didn’t Say In The Trump Ballot Case — And How The Justices Splintered

Just a few months ago, it looked like March 4 would be the first day of Donald Trump’s criminal trial on federal charges of subverting the 2020 election.

Instead, he spent the day celebrating a legal victory that kept him on state ballots — and preparing for Super Tuesday, when he’s expected to sew up the Republican nomination.

The dramatic change in circumstances is largely the work of the Supreme Court. In an unsigned opinion on Monday, the court threw cold water on states’ efforts to kick Trump off their 2024 ballots. And that ruling came on the heels of the court enabling months of delays in Trump’s federal election trial — delays that have ensured that the trial, once scheduled to begin March 4, almost certainly will not occur before this fall.

Here are three big takeaways from Trump’s latest SCOTUS triumph:

Jan. 6 — and Trump's role in it — is set aside

The efforts to remove Trump from the ballot rested on a divisive contention: that the former president engaged in insurrection by encouraging his supporters to storm the Capitol on Jan. 6, 2021. His role in the attack, the challengers said, made him ineligible to run again due the insurrection clause, a provision of the 14th Amendment that bars insurrectionists from holding office.

But while shutting down the dozens of challenges in states across the nation, the Supreme Court was mum on that central claim.

The high court offered precisely zero analysis about whether Jan. 6 should in fact be deemed an insurrection or whether Trump gave it enough fuel to have engaged in an effort to overthrow the U.S. government.

Instead, the court focused on a more technical issue: whether states have the power to “enforce” the insurrection clause. When it comes to candidates for federal office, the court said, states don’t have that authority. Only Congress does.

By deciding the case on these grounds, the court left unresolved whether Trump is indeed qualified under the Constitution to serve again as president — and essentially punted the core issue of Trump’s eligibility to Congress.

Federal lawmakers could, in theory, now try to pass legislation knocking Trump off the ballot — though such legislation, the court noted tersely, would be “subject of course to judicial review.”

The justices did note in passing the existence of a federal criminal law against insurrection that says anyone convicted of that crime is disqualified from holding office. While Trump currently faces 91 felony charges in various state and federal courts (some of which stem from his actions on Jan. 6), none of those counts alleges that he violated the insurrection statute itself.

Another post-election challenge lurks

By leaving the question of Trump’s eligibility unsettled and in the hands of Congress, the Supreme Court’s ruling may open the door to another day of turmoil on the four-year anniversary of the Jan. 6 attack.

Consider a scenario in which Trump prevails in the November election and at least one branch of Congress ends up under Democratic control. On Jan. 6, 2025, the newly elected Congress will meet to certify the results of the Electoral College.

And in that scenario, Democrats — some of whom have already declared that they believe Trump is ineligible to serve — would have to decide whether to count Trump’s electoral votes and certify the election.

It’s not difficult to imagine a movement to refuse to count Trump’s electors by citing the 14th Amendment and the Supreme Court’s decision empowering Congress to enforce it. It would be an extraordinary role reversal for Trump, who on Jan. 6, 2021, stoked the movement on the right to refuse to count Joe Biden’s electors based on bogus claims of fraud.

9-0 or 5-4?

Nominally, Monday’s ruling was unanimous: All nine justices agreed with the bottom-line result that states do not have the authority to disqualify federal candidates under the 14th Amendment.

But beyond that agreement, the decision revealed a fractured court.

Only five justices joined the portion of the court’s unsigned opinion that declared that Congress is the only entity empowered to enforce the insurrection clause. That portion of the opinion appeared to rule out other potential avenues for challenging insurrectionist officeholders, such as lawsuits through federal courts.

The remaining four justices — the court’s three liberal members as well as one Trump-appointed conservative — accused the majority of overreaching. They said it was not necessary to declare that Congress has exclusive enforcement authority.

And in decrying a lack of judicial restraint, the liberal trio rolled out the big guns. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson opened their six-page joint concurrence with a line from Chief Justice John Roberts’ solo opinion in the 2022 case that overturned the federal constitutional right to abortion, Dobbs v. Jackson Women’s Health Organization. “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” Roberts wrote then.

The implication was clear: Roberts and the other justices in the majority were deciding more than necessary in the Trump case.

And for their closing quote, the liberal justices turned to recently retired Justice Stephen Breyer’s dissent in the case that decided the 2000 presidential election, Bush v. Gore. “What it does today, the Court should have left undone,” Breyer wrote.

Justice Amy Coney Barrett did not join the liberals’ concurrence, but she wrote a brief concurrence of her own saying the majority had gone further than necessary and both sides needed to tone down their language.

“The majority’s choice … leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency,” Barrett wrote. “Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.”

“Our differences,” Barrett added, “are far less important than our unanimity.”