Trump v. Anderson is more complicated than it looks

Recently, the Supreme Court heard arguments on the Trump v Anderson case, which could determine whether President Trump appears on the ballot or whether he is disqualified for participating in an insurrection.

The case is at once momentous. Imagine the chaos that would ensue in removing a major party presidential candidate from the ballot well into election season. But at the same time, the case is tactical, dealing with a previously obscure part of the Constitution, involving questions of interpretation of what the word “insurrection” or the phrase “officer of the United States” means.

The crux of the case is a section of the 14th amendment that banned certain government officials who participated in an insurrection from holding office. The direct issue at hand was the fate of thousands of federal, state and local office holders who supported the Confederacy in the Civil War. But even though almost all the cases involving disqualification from office for insurrection occurred in the aftermath of the Civil War, the provision was written broadly enough that it might apply to office holders who participate in an insurrection in the future.

This nearly forgotten provision of the Constitution had new life breathed into it by legal commentators, and especially by two conservative legal scholars, Will Baude and Michael Paulsen, who argued not only that Trump had participated in an insurrection, but also that any state could make that decision itself and remove Trump from the ballot.

Many states now looked at this issue. In Colorado, the state Supreme Court decided to remove Trump from the ballot, leading to the case of Trump v. Anderson before the court today. In Maine, the Secretary of State decided that Trump was ineligible to appear on its ballot.

In early February, the [Supreme] Court heard over two hours of oral arguments on the case. And while it is often dangerous to read too much into oral arguments, in their questions, the justices seem to reveal a strong interest in not issuing a messy decision. They worried about the prospect of different states coming up with different decisions about Trump’s ballot status. They worried that if they did not decide definitively, they might face more cases later in the year. They worried about the prospect of a trial in federal court, where the court would have to engage in fact finding about January 6th or other charges relating to insurrection.

It’s not clear how the court will get to a decision. Will they decide the section of the 14th Amendment does not apply to Trump as a former president? Will they decide that a stronger signal would need to come from Congress before states make decisions on Trump’s ballot status?

But at the end of the day, the court seems focused on pragmatic concerns. How can we run an election that looks like a typical election? And how can the process go forward without the Supreme Court becoming overly involved? There are plenty of constitutional and political issues that will consume legal scholars and defenders and opponents of Donald Trump. But as for the final decision on Trump’s status, the court seems determined not to allow state courts, secretaries of state, or even the Supreme Court itself to make this decision. Trump’s fate will likely be decided by voters in November.