Anti-Trump demonstrators protest outside the U.S. Supreme Court, in Washington, on Feb. 8.ROBERTO SCHMIDT/Getty Images
At the heart of American jurisprudence – and the countless efforts to create a civil society and extend and preserve the rights of citizens of the United States – lies a 433-word amendment whose passage 156 years ago is sometimes regarded as the second founding of the republic. It applies to the definition of U.S. citizenship, the requirements of due process and various provisions related to healing the country after its catastrophic Civil War.
As sweeping as the 14th Amendment is – its effects spill into nearly every aspect of American civic life – it does not prohibit Donald Trump, as implicated as he may be in the insurrection at the Capitol three years ago, from running for another term as president.
That is the conclusion of the Supreme Court, in an unusually swift decision rendered only hours before voters in 16 states and the territory of American Samoa go to the polls in Super Tuesday balloting, which will distribute about a third of all the convention delegates in the November election and likely confirm Mr. Trump and President Joe Biden as the major-party nominees.
The top court’s decision, in an unsigned 13-page ruling, has political and legal implications, putting to rest contentious arguments about the intent and consequences of the Reconstruction-era addition to the Constitution. It ruled that the responsibility of disqualifying a presidential candidate “rests with Congress and not the states.”
Republican presidential candidate and former U.S. president Donald Trump takes part in a campaign rally in Richmond, Va., on March 2.Jay Paul/Reuters
The bottom line: The Supreme Court believes voters, not the legal system – especially an interpretation of the 14th Amendment that by some estimations was a rhetorical and logical stretch – should decide who can be president. At the centre of its reasoning is that Mr. Trump should remain on the ballot in Colorado, which prompted the case, and elsewhere, arguing that an individual state cannot remove a federal candidate from contention without congressional approval.
The court also warned of “chaos if a candidate for nationwide office could be declared ineligible in some states, but not others, based on the same conduct.”
The ruling ends the hope of legal scholars, some on the right and many on the left, whose desire to keep Mr. Trump out of the White House found, for a few months, a potential safe harbour in the third section of the amendment.
Written when Americans were struggling with how to regard those who had joined the secessionist movement that created the Confederate States of America, it specifically addressed Confederate political and military officers of the 11 rebellious states who “shall have engaged in insurrection or rebellion against” the United States.
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Monday’s extraordinary decision, rendered on a day in which the court was not actually scheduled to meet, was greeted with relief by the Trump campaign, which had argued that individual states possessed no such power. “BIG WIN FOR AMERICA,” the former president said on his Truth Social platform.
There was disappointment among those who sought to bar Mr. Trump from his third presidential campaign and perhaps his second term.
“The court did what was entirely expected,” said Laurence Tribe, a Harvard Law School expert on constitutional law, in an interview. “But the court went much further than it had any need to go by limiting how the ‘disqualifying provision’ of the amendment could be enforced.”
The justices – reluctant to involve themselves in the 2024 presidential election – clearly regarded this case with special urgency and consequence. The court’s previous foray into an election, the Bush v. Gore decision that tipped the 2000 presidential election to George W. Bush even though Al Gore won the popular vote, prompted the first time a larger slice of Americans disapproved of rather than approved of the court, according to a Gallup poll.
Visitors stand outside the U.S. Supreme Court, in Washington, on Dec. 19, 2023.Kevin Lamarque/Reuters
In the two dozen years since that decision, there have been several suggestions that at least two of the Republican-appointed justices who delivered the election to Mr. Bush regretted their vote and the court’s involvement more broadly.
“The court, with its lowest public-approval rating in recent memory, sought to speak with one voice and resolve this issue before additional blue states disqualify Trump – or even red states do that for Biden,” said Daniel Urman, a constitutional law scholar at Northeastern University. “Individual justices in this case certainly disagreed about the meaning of Section 3 of the 14th Amendment, but sometimes the court rules unanimously for the legitimacy of the institution. They chose a path that lets the court appear more modest and passive.”
The argument in the Colorado case was that by inciting the rioters at the Capitol on Jan. 6, 2021, Mr. Trump could be disqualified from the presidency because he satisfied the requirement of “having previously taken an oath, as a member of Congress, or as an officer of the United States” and had indeed engaged in insurrection or rebellion.
“A reasonable person reading the text and understanding the context might say Trump’s an insurrectionist and is disqualified,” said Matthew Dallek, a George Washington University historian. “The challenge is figuring out who makes the decision about whether someone is an insurrectionist. There’s no clear mechanism for achieving and implementing that decision.”
But the Supreme Court, which had never before ruled on the provision, affirmed what many skeptics of the anti-Trump effort believed: a provision written to address a specific condition in the middle of the 19th century did not have application at the beginning of the 21st.
The justices are moving substantially less swiftly in an even more far-reaching case involving the nature and extent of presidential immunity from prosecution. Mr. Trump is arguing that he is immune to legal challenge for any act he takes as president – a notion no American chief executive since Richard Nixon has contemplated.
In his 1977 interview with David Frost, the former president said, “Well, when the president does it, that means that it is not illegal.” A fortnight later, in a submission to The Washington Star, Mr. Nixon sought to clarify his views, saying he did not believe a president is “above the law” but must have latitude to adapt “statutory laws to the laws of necessity and the rule of reason.”
David Shribman