“The Court’s latest decision, Trump v. Anderson, took on the question of whether a provision of the 14th Amendment, which prevents former high-ranking officials who “have engaged in insurrection or rebellion against” the United States from serving in a high office again, disqualifies Trump from office. Their answer is as big a victory as Trump could have hoped for.
The five-justice majority opinion does not simply hold that Trump may seek the presidency again, despite his role in inciting the January 6 insurrection at the US Capitol. It effectively neutralizes this provision of the 14th Amendment altogether — at least as applied to the 2024 election.
All nine justices agreed that the state of Colorado, whose highest court determined that Trump was disqualified, was not allowed to make this determination. As the Court’s three Democratic appointees write in a cosigned opinion dissenting from the majority’s reasoning, states have limited authority to decide questions that “‘implicate a uniquely important national interest’ extending beyond a State’s ‘own borders.’” So the decision whether or not to disqualify Trump should have come from a federal court, or some other federal forum, not from state courts.
Fair enough, but the majority opinion (which is unsigned, and joined by all of the Court’s Republican appointees except for Justice Amy Coney Barrett) goes much further than that. It holds that the Constitution “empowers Congress” — and only Congress — to determine which individuals are disqualified from public office because they previously engaged in an insurrection.
Then it points to a single statute, a criminal law that calls for imprisonment and disqualification from office for anyone who “engages in any rebellion or insurrection against the authority of the United States or the laws thereof” as the sole existing vehicle to enforce the 14th Amendment’s anti-insurrection provision. Trump has not yet been charged with violating this law, although he has been charged with violating other federal criminal laws because of his alleged attempt to overthrow the 2020 election.
This means that any attempt to disqualify Trump is almost certainly dead. Even if special counsel Jack Smith can amend his indictment to bring charges under the insurrection statute, the Court’s decision to slow-walk Trump’s trial means that the election will most likely be over before that trial takes place.
The courts, it is now crystal clear, are not going to do much of anything to prevent an insurrectionist former president from occupying the White House once again. And the Supreme Court appears to be actively running interference on Trump’s behalf.”