Opinion | How Could the Supreme Court Respond to Colorado?

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Hi I’m David Firestone, an editor on the editorial board of the New York Times.

And I’m Jesse Wegman, a writer on the editorial board, and I cover the Supreme Court, law and politics.

And Jesse, we are going to talk about that rather remarkable ruling that came out of the Colorado Supreme Court. They ruled that Donald Trump is disqualified to be on the 2024 primary ballot in Colorado, which could have national implications. You’ve written a bunch about this. Were you surprised last night when you saw what the ruling was?

Absolutely. I actually found out from you. I was getting my daughter ready for her basketball practice and not looking at the news. And I got your text, and it said something like, did you see what just happened in Colorado? And I thought, oh, man, I know what that’s about. And I wasn’t expecting it, I have to say. I just didn’t think a court of last resort anywhere would actually go there.

Let’s step back for just a second and explain exactly what the ruling said and why they made this ruling and what the potential implications are.

Right, so the ruling itself is, as you said, that Donald Trump is ineligible to be president because of his role in the insurrection on January 6th. Now where does that come from? It comes from the 14th Amendment — Section 3, in particular — that came about in the wake of the Civil War when there was a concern among the winning side that the former Confederates would try to reenter politics either at the federal or state level. And they didn’t want people who had just fought a war to overthrow the American government to be back inside that government.

So they wrote this provision that said, if you engage in or aid and abet an insurrection after having previously sworn an oath to defend the Constitution, you may no longer hold any public office anywhere. The provision has almost never been invoked in the last 170 or so years since the Civil War. But as with so many things about American law and politics, Donald Trump has reintroduced us to features of our Constitution and our political history that we didn’t know about.

Cases under the 14th Amendment Section 3 have been brought in multiple states. They’ve been dismissed in many of those states for various reasons. But in Colorado, it went all the way up to the state Supreme Court, and they ruled against Trump.

It is a remarkable moment that this actually happened, that a state Supreme Court has said that a former president engaged in insurrection.

It is. And I just think it’s another reminder that Donald Trump so often pushes the boundaries of what we expect from our leaders and brings us to places that we didn’t expect to go. There’s virtually no case law on Section 3 of the 14th Amendment because no prior president has ever tried to do anything like this. So every time a court rules on the issue, it is breaking new ground.

And this one, it caught my breath when I saw your text, because I thought, wow, we’ve entered a new moment in American history where a court of last resort in one of the states has determined that a former president and potential future president is ineligible to serve and thus disqualified from appearing on the ballot. I think all Americans should see that and stop and think, is this the kind of debate we want to be having, or do we want to be choosing among candidates who are not testing the outer limits of legality and constitutionality?

But it will go to the Supreme Court. Trump has vowed to appeal it. Do you think there’s any doubt that the US Supreme Court will take it, and what’s your guess about what its standing will be once the court decides to hear it?

I think there’s no way the court can’t take this case. Now that said, how the court is going to rule when it takes this case, I think, is very much up in the air. Part of me thinks there’s just no way they’re going to rule in favor of the Colorado Court. They’re not going to uphold the ruling of the Supreme Court, because that would effectively have to tie all 50 states to the same standard and remove Trump from the ballot in all 50 states. I don’t think the Supreme Court is ready to take a step like that.

At the same time, I think the legal analysis by the Supreme Court of Colorado is hard to argue with. And I think when you look at the way that this current US Supreme Court likes to talk and think about cases and history with its focus on originalism, the Colorado Supreme Court stayed pretty close to those values. And it’s going to be tough for the Supreme Court to talk its way out of that.

You’ve been so critical in your editorials and essays of the conservative majority on the US Supreme Court. Do you think that they will make this decision based strictly on the legality, or will there be politics and partisanship involved?

I think that’s such a hard question. I mean, there’s always politics involved in what the Supreme Court does, right? It’s an institution that exists at this uneasy crossroads of law and politics. And they know it, and we know it, even if it is rarely said. I do think you have several justices on that court who have not hidden their partisan and ideological preferences.

And I’m thinking specifically of Justices Clarence Thomas and Sam Alito, who really seem in the tank for Trump. I think Chief Justice Roberts he carries the burden of being the chief of this court heavily, and I think he knows that the institution’s legitimacy is in grave danger right now because of the behavior of the justices to his right. Justices Amy Coney Barrett and Brett Kavanaugh, I think, are also a little less extreme than their colleagues Justices Thomas and Alito.

But I think in the end, the most important number at the court, as they say, is five. You need to get five votes. Can the Colorado Supreme Court ruling get five votes to uphold it? I think it’s an open question, and I’m less certain than I might have been in recent weeks or months that the court is just going to strike this down.

Let’s get to the meat of this decision. You’ve in the past been a little ambivalent about whether this is the right way to approach Trump’s re-election. There’s certainly an argument that people have made that this is an anti-democratic move, because it deprives the voters of a choice. Where in the end do you come down on this after seeing this decision?

Well, you’re right that I’ve been ambivalent about it in my pieces that have touched on this topic over the last year. Plus I feel like I have been going back and forth, because I think it’s a genuinely tough problem. And I think there’s good arguments on both sides. Let’s, though, dispense first with the anti-democratic argument. There is nothing anti-democratic about imposing qualifications for holding public office of any kind.

And certainly the office of the presidency, there are already several eligibility rules in the Constitution that nobody raises a stink about. For example, the president must be 35 or older. The president must be a natural born citizen. These are qualifications that eliminate millions of people from the office of the presidency, and nobody says they’re anti-democratic. And so I think if we’re going to have eligibility rules for the presidency, it’s pretty reasonable to have one that says, by the way, you don’t get to lead a country that you tried to overthrow. These are people who pose a unique threat to the Republic. In a way, a far greater threat than a 34-year-old would or a non-natural-born citizen would.

Now in this case, is it the right way to go? And that’s where I think you’re right to point out my ambivalence. I always would prefer to see in electoral politics the results be driven almost primarily, if not exclusively, by what people want. It’s why I argue against the electoral college. And you could make that same argument in this case. You could say when you take Donald Trump off the ballot, you are depriving the people of full and free choice of who they want for president.

And that’s true. But the people already had an opportunity to weigh in. They overwhelmingly rejected Donald Trump in 2020. So it doesn’t really bother me in the same way as it did maybe a year ago.

I’m trying to imagine the look on John Roberts’s face when he found out last night that he and his colleagues are going to have to deal with this. They’ve got so much Trump on their plate for the next few weeks and months. This cannot have been something that they were looking forward to.

Look, I mean, the court now has three different January 6th related issues before it. I don’t envy the justices right now at all. The country is watching them. There’s three very high profile cases. And they have to be decided very fast. And they implicate the deepest concerns of a representative democracy, which is, who will be the leader of a country of 330 million people? At the same time, I think it’s appropriate that this is where these issues have ended up. The courts are a co-equal branch of government. The courts help us to resolve disputes that can’t be resolved in the political realm. And they’re there as another bulwark against the kind of tyranny that the founders were building a system based on the separation of powers to avoid.

So I actually think, as much as I’m been really upset with the way the Roberts court has handled itself and how it was created in the first place over the last eight years with the machinations of the Republican Senate, I actually think this is the right place for these issues to be resolved. And I really hope the court takes them seriously and addresses them as legal issues without dipping too much into the politics that surround them.

That’s right.

David, I want to ask you. I mean, you’ve been covering politics for far longer than I have. And the moment this case landed last night, I think you saw the significance of it. I’m curious how you look at it through the lens of your own experience.

I think Republicans are going to actually celebrate this as a useful tool to generate further outrage among their base. And they can count on the fact that there aren’t that many voters who pay attention to the legal details. If you add them up, to many voters out there, it just seems like the entire legal system is going after Trump, and that’s certainly something that he has tried to convince people of. If you start going through each case one by one, it’s an incredibly damning picture of Trump’s behavior. In office, in business, even at his resort in Florida. And if he’s actually convicted on one of these before the election, I think it will have an enormous effect.

But for now, voters are not going to understand some of the technical details about why someone can get thrown off a ballot. And I think it’s going to be difficult for Democrats to use this in a way that actually might diminish support for Trump.

Well, I would also just point out that this isn’t the legal system coming after Trump. Trump has been asking for all of this. This is how he works, and this is how the legal system responds. All of this is because of things that he did. Right, nobody chose to go after him. Donald Trump sought this out, and he’s now getting what he asked for.

And there is a threat of violence underneath all of this. The movement is based on violence if you don’t get your way. And I think, yes, everyone needs to take that seriously. It’s not a joke. But I think that this is how democracies survive, is to confront that threat head on and not to buckle under it or to twist the results in order to appease the threatener. So this is how Donald Trump works. It’s how he’s always worked. It’s how he worked in business. It’s how he worked in TV. It’s now how he works in politics.

He can’t be allowed to do this without accountability when it comes to leading the nation. And I think that’s what we’re seeing play out right now.

Well, it all gives us more as journalists a lot to do. And as editorial writers, we’re going to be weighing in on all these cases. For now, though, thanks very much for talking with me.

Thanks, David.

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