The Court needs to give the country a clear, final answer on Donald Trump’s eligibility for office.
For the most part, America’s governing institutions have thus far responded to the problem of Donald Trump’s authoritarian aspirations by punting—passing the ball to some other actor in our political system. The criminal prosecutor Robert Mueller decided that Congress, not the Department of Justice, where he was special counsel, should assess whether Trump had committed any crimes in the 2016 election. Senate Minority Leader Mitch McConnell publicly blamed Trump for January 6 but voted to acquit him in his Senate impeachment trial anyway, on the grounds that holding Trump accountable for his actions was the responsibility of the courts. Similarly, the overwhelming majority of state election officials who have considered whether Trump should be deemed ineligible to appear on ballots have concluded that such decisions are really best left “up to the courts.”
If anything is clear from the voluminous briefs filed recently with the Supreme Court in the appeal of the Colorado case holding Trump ineligible to serve as president, it is that parties on both sides are urging the Court to punt now as well. But punting in this case would be a profound mistake. The constitutional part of constitutional democracy means maintaining a functional government under the rule of law—a system in which legal disputes are decided not by arbitrary whim or violence but by falsifiable findings of fact and uniform rules applied in like cases. From time to time, that requires a single court to say, on the merits and unanimously if at all possible, “what the law is.”
In this case, the Court has multiple legal avenues available to avoid deciding the central question of Trump’s eligibility. The Court could decide, for example, that Colorado did not afford Trump a fair chance to challenge claims about his own role on January 6, and send the case back to the state court for further hearings on the facts. Alternatively, the Court could conclude that presidential eligibility can be resolved only by Congress, not by any actor in state government, leaving any eligibility challenge to be negotiated in January 2025, when Congress will once again be counting Electoral College votes. It is even conceivable that some members of the Court might conclude that the judiciary simply lacks the power to consider the merits at all, holding instead that the case poses a “nonjusticiable political question,” meaning a question that the Constitution requires be settled anywhere other than federal court.
The problem for the Court is that the legal arguments in favor of any of those moves are either exceptionally weak, conflict profoundly with other principles of constitutional law, or do not succeed in ridding the Court of the case for long. Any decision to remand the case back to the Colorado trial court for further findings on the facts, for example, likely only delays the moment when the case (accompanied by an even heavier box of papers documenting Trump’s role) comes back again to the Court on appeal. In the meantime, more cases with factual records may develop in more states as the election draws closer. Likewise, the argument in which Republican Party lawyers are so far most invested—that Congress has exclusive power to provide for the enforcement of Section 3—runs headlong into the Court’s strong, bipartisan-majority endorsement of the view that state governments retain “far-reaching authority over” how to award presidential electors in their state. Colorado exercised exactly that authority here, providing in its own law that potential electors could challenge candidate qualifications before the election. Nothing in the text or history of the Fourteenth Amendment suggests that the drafters of that amendment were trying to write states out of the role the Constitution gives them in multiple ways. As for the idea that the Court lacks the power to hear the case at all—what the Court calls posing a “political question”—that, too, likely punts for only so long. Such a judgment would mean not only that the Colorado decision stands but also that every state in the union gets to decide for itself how to proceed, triggering what election-law experts expect to be an unpredictable cascade of additional challenges (some styled as deprivations of voting rights) that will be even harder for the Court to avoid.
It is entirely right to worry about the cost to the Court’s legitimacy in taking on the incredibly fraught question of Trump’s insurrectionary engagement, a question far more complex as a matter of law than many assert. U.S. courts do not have any real enforcement power of their own—as Alexander Hamilton put it, they have neither “purse” nor “sword.” Courts sometimes depend on executive officers (sheriffs or troops) to carry out their orders. But in most cases, courts depend solely on the public’s belief that their orders should be respected. This is why judicial legitimacy matters. Without it, the system fails. Today, popular belief in the Court is already damaged. When the Court split along ideological lines in its misguided 2000 decision in Bush v. Gore, public trust in the judiciary was very nearly twice what it is now.
The difficult questions in this case are likely to leave the justices divided. But there is no legal reason these claims need to leave them politically polarized, with the six Republican-appointed justices on one side and the three Democratic appointees on the other. The legal arguments surrounding the meaning of Section 3 do not align neatly with partisan preferences. The conservative wing of the Court has famously embraced originalist interpretation, but the originalist arguments here work strongly in favor of the claim that Trump engaged in insurrection. The cases most protective of speech rights come from the liberal Warren Court, but their effect here is to strengthen the argument for retaining Trump, whose “engagement” in violence amounted to speech inciting others to do it for him. In this setting, a 6–3 decision where the conservatives all vote to keep Trump on the ballot and the liberals all vote to take him off risks fatally undermining whatever public faith remains that the Court’s power is even partially constrained by principled legal interpretation, or indeed by anything other than raw partisan preference.
But at most, these arguments about the Court’s legitimacy point to the importance of it avoiding partisan polarization in its judgment. Legitimacy is not an argument to duck the merits of the case altogether. No matter what the Court does next, its popular legitimacy will be sorely tested. Tens of millions of Americans are going to believe that it got the answer wrong, and that the result of the 2024 election is at best unfair because of it. Punting will only make already bad matters for American constitutional democracy worse. For there is no legitimacy, or democratic stability, in governing institutions that do nothing but race to see who can avoid taking responsibility for the hardest issues for the longest time. And basing decision making not on facts or law but on, as some have counseled in this case, fear of arbitrary violence is anathema to a rule-of-law system. In an era of rising antidemocratic sentiments in the United States and around the world, constitutional democracies have to be able to show that they are capable of fulfilling the most basic functions of governance. In this case, at the very least, that means deciding to decide.
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