There is much more to say about the Colorado supreme court’s 4–3 decision, spread across 213 sprawling pages, disqualifying Donald Trump from the state’s primary ballot on the grounds that he “engaged in” insurrection within the meaning of Section 3 of the 14th Amendment. I’ve previously explained why that’s wrong as a matter of the original public meaning of Section 3. But this much seems clear from a first perusal: The Supreme Court is not going to be able to duck the issue or delay it. As I have discussed before, there are two problems with getting the question to the Court: Somebody needs to have standing, and the Court won’t leap to the issue if it thinks it can be put off until later. The Colorado supreme court just bulldozed both of those objections, and because the Supreme Court won’t revisit the state-law rulings, it will have to address only the questions of federal law.
On the standing issue, the Colorado court found that state law allowed the challengers to toss Trump from the ballot. Assuming Trump appeals that decision, there is no real doubt under federal law that he has standing to take a case to federal court on whether, as a matter of federal law, he is disqualified from the ballot. On the issue of prematurity, the Colorado court ruled as a matter of state law that it had to decide the question in time for the January 5 deadline to settle the Colorado Republican primary ballot. So, the Court will be called upon not only to hear full briefing and argument on the federal questions, but to do so and rule before January 5.
That doesn’t mean the Court will end up deciding whether Trump engaged in insurrection. Trump has a number of federal-law defenses: that Section 3 isn’t self-executing without implementing legislation or a criminal conviction, that it doesn’t cover the president, that the First Amendment protects Trump’s speech and wasn’t implicitly repealed in that regard by the 14th Amendment, that the Republican Party has a First Amendment right of association to put an ineligible candidate on its primary ballot, and even that Trump may have a legal defense because the Senate didn’t convict him on effectively the same charge. I remain skeptical of these defenses, some more than others, but several of them have their scholarly supporters. But the Court will have to wade through the whole mess unless Trump decides for strategic reasons that he doesn’t want to challenge the ruling.
Merry Christmas, John Roberts. Hope you and your colleagues didn’t have plans.