The Colorado Supreme Court Correctly Disqualified Trump

In Anderson v. Griswold, the Colorado Supreme Court ruled that Section 3 of the Fourteenth Amendment disqualified Donald Trump from appearing on the primary ballot for president. I want to make some brief observations about the opinions in Anderson, the issues that were resolved, and what happens next as this is appealed to the United States Supreme Court. I’m not going to go in depth in my analysis of Section 3 of the Fourteenth Amendment, because I’ve already examined that in length in a prior post. I’m also going to limit my discussion of justiciability to how that connects to further appellate review. I also have written a previous post addressing justiciability and who ought to decide cases about Section 3. I recommend that people who want a deep dive on the substantive issues read both of those posts, in the order that I linked to them.

In Anderson, the Colorado Supreme Court decided by a 4–3 vote that the Secretary of State cannot put Donald Trump on the ballot because he engaged in insurrection on January 6, 2021, and Section 3 of the Fourteenth Amendment renders a former president who subsequently engaged in insurrection ineligible to be president. While not the first court to enforce Section 3 in connection with the January 6 storming of the Capitol, this is the first court to rule that Section 3 bars Trump specifically. Several other courts have previously refused to reach the issue for jurisdictional and procedural reasons. All seven justices of the Colorado Supreme Court were appointed by Democratic governors; however, Colorado uses merit selection for justices (“modified Missouri plan” for people who care about the minutia) where a commission selects three candidates for each opening and then the governor picks one, and appointments are generally thought of as nonpartisan. Some of the justices are personally members of the Democratic Party; at least one is a Republican; and I wasn’t able to determine the personal affiliations of several justices.

The Majority Opinion Was Careful, Thoughtful, and Comprehensive

The majority opinion was “per curiam” (by the Court), meaning that it was unsigned. That likely means that each of the justices who joined the opinion wrote some of the sections, although it may also have been primarily written by one of the justices but unsigned for other reasons. The Court noted that this was common in the highly expedited context of election litigation. Also, the justices may have a very real fear of violent retaliation — they almost certainly will receive death threats and threats to their families, and I think there is a non-trivial chance of actual violence. By issuing the decision per curiam, the Court avoids focusing that wrath on a single justice who wrote the majority opinion.

I’m not going to provide a detailed discussion of the majority opinion here, but I do want to outline the long set of issues that the majority carefully considered in its 133-page opinion. While I’m often critical of overlong, bloated judicial opinions, especially ones filled with some immediately post law school clerk’s pointless dissertations about the development of an area of law that don’t matter to the case at hand, this opinion isn’t an example of that. I’m sure that with more time, the opinion could have been made a little tighter and more efficient, but it’s long because there are many issues that had to be considered, and the Court gave each of them careful and thoughtful analysis. Most of the Court’s analysis is easy to read and follow, with the exception of a few of the more technical procedural questions; I encourage people to read the sections dealing with any issues they find interesting.

The majority ruled (page numbers are to the slip opinion linked to above): 1. That Sections 1–1–113 and 1–4–1204 of the Colorado Election Code give the Colorado courts the authority to consider whether a candidate is qualified to hold office in determining whether the Secretary of State should list a candidate on the primary ballot (pp. 17–41); this analysis is a quite technical discussion of the details of Colorado’s statutory law about elections and prior precedents of the Colorado Supreme Court addressing what issues can be properly raised in the expedited proceedings provided for by Section 1–1–113; 2. that preventing a political party from including a candidate who is not qualified to take office does not infringe on the party’s First Amendment rights of association (pp. 41–44); 3. that Section 1–1–113’s provisions for an expedited consideration of whether a candidate should be included on the ballot provide adequate due process, including the opportunity to fully present legal arguments, enter evidence, examine and cross-examine witnesses, and participate fully in a judicial determination of facts and law even without the same procedures as are typically available in unexpedited civil litigation; the Court addressed both the provisions in general and the district court’s specific handling of this matter in particular (pp. 44–49); 4. that Section 3’s disqualification happens automatically without a need for Congressional legislation enforcing it (that it is “self-executing,” like the rest of the Fourteenth Amendment and its sister post-Civil War amendments) (pp. 49–61); 5. that Section 3 does not present a nonjusticiable political question, because Congress’s enforcement powers in Section 5 do not remove it (or the rest of the Fourteenth Amendment) from the type of question courts can and do resolve (pp. 61–67), and because the legal and factual questions raised by a Section 3 issue are amenable to judicial determination and have manageable standards (pp. 67–69); 6. that Section 3 applies to the President because (a) the Presidency is an “office under the United States” (pp. 69–79), (b) the President is an “officer of the United States” (pp. 79–84), and (c) that the presidential oath to “preserve, protect, and defend the Constitution” is an oath to “support” the Constitution (pp. 84–88); if you think this is obvious from the plain language, the Court basically agreed, though it also provided other authority besides the ordinary meaning of the text of Section 3; 7. that some evidentiary decisions made by the district court were not an abuse of discretion (a high standard for error) and were not reversible error even if they were (pp. 88–95); 8. that the district court properly found that Trump engaged in insurrection, (a) applying a clear error standard to factual findings by the district court and de novo review to legal conclusions (pp. 96–97), (b) because the legal meaning of “insurrection” can apply to an incident like January 6 (pp. 97–103) and (c) inciting or directing an insurrection is sufficient to “engage in” insurrection, and Trump’s actions met that standard (pp. 103–116); and 9. that Trump’s speech and actions were not protected by the First Amendment because they constitute incitement to imminent unlawful activity that is not protected under the U.S. Supreme Court’s precedents (pp. 116–132). The Court also stayed its decision (prevented it from going into immediate effect) to allow the U.S. Supreme Court to consider the case — a clearly correct result because the Supreme Court will almost inevitably grant review and requiring the parties to move for a stay pending appeal would just waste everyone’s time.

As I hope the previous, exhausting paragraph made clear, this was a case with a lot of different, sometimes intertwined and sometimes separate, issues. The majority needed to work through and consider all of the issues in order to disqualify Trump, and it did so in a careful, thoughtful way. It also notably quoted from respected academics and from a decision then-Judge Gorsuch wrote before his appointment to the Supreme Court, in a way that is widely understood as writing primarily for the U.S. Supreme Court’s review of this decision. I don’t agree with every iota of the opinion, and there are issues that I would have handled slightly differently. Nonetheless, I agree with the opinion and think it fundamentally got the issues right. For people who are interested in my thoughts about specific issues that the Colorado Supreme Court addressed, I point you to my previous posts. Most importantly, the majority expressly recognized that this is not a case that courts want to decide, but that nonetheless it’s their duty to apply the law impartially even if that will bring about criticisms and accusations of being politically motivated. I think that’s exactly right, and that the Colorado Court demonstrated a moral courage in accepting the responsibility that comes with their power. That moral courage has been sadly absent from most of the courts that have considered these Section 3 challenges.

The Dissents Are Entirely Procedural, Not Substantive

Three justices dissented from the majority’s opinion: Chief Justice Boatright, Justice Samour, and Justice Berkenkotter. Each wrote their own dissent, and none of the dissents were joined by any of the other justices (although I’m not familiar enough with Colorado Supreme Court practice to know how much that should indicate disagreement). Most tellingly, none of the dissents addressed the majority’s conclusion that Section 3 applies to the Presidency and that Donald Trump engaged in insurrection. They each would have dismissed the case on procedural grounds without reaching those issues, and while they could have nonetheless either agreed with the majority’s conclusions or argued why the majority’s opinions were incorrect (dissenting justices often do even when they disagree on procedural grounds), they chose not to engage.

The closest any of them came to addressing the substance of the Section 3 claim was in Justice Samour’s dissent in a footnote where he expresses that “[t]here is at least a colorable argument that the majority incorrectly holds that Section 3 applies to the President” and “other parts of the majority’s analysis . . . are at least questionable.” Samour Dissent at 7 n. 3. A “colorable argument” is of course typically lawyer-speak for “a dumb and wrong argument, but not one that a court will laugh at or sanction a lawyer for frivolously arguing because of the obligation to zealously represent a lawyer’s client.” It’s at best a statement of dubious plausibility, because so many better ways of expressing that an argument looks correct without getting into the details exist. It could be a “reasonable” or “credible” or “persuasive” argument. But even in his intemperate and poorly reasoned opinion that often attacks the majority vigorously, Justice Samour wasn’t willing to go that far, merely asserting that the argument about whether Section 3 applies to the President is “at least colorable.” The language describing the majority’s holdings on the First Amendment and the meaning of engaging in insurrection express more doubt, but even there, Justice Samour only says “at least questionable.” This is obviously the most important case that the Colorado Supreme Court will consider all year, likely in the entirety of Justice Samour’s career, but he still isn’t willing to actually engage substantively in the question of whether Section 3’s language would bar Trump from office. Instead, he merely argues that this is procedurally all wrong.

Two of the three dissents rest entirely on an understanding of Colorado’s Election Code. Justice Berkenkotter expressly opines that “I agree with the majority that, if the General Assembly wants to grant state courts the authority to adjudicate Section Three challenges through the Election Code, it can do so.” Berkenkotter Dissent at 25. Her argument is entirely about the statutory scope of Section 1–1–113; in her view, the majority incorrectly allowed this litigation to use the expedited process of Section 1–1–113 to address an issue that needs to be litigated using other processes, in the absence of a clearer instruction that constitutional qualification arguments can be considered under Section 1–1–113. I disagree with her argument, but it’s a close call and her position is entirely reasonable — the statute’s scope is somewhat unclear and textually complicated. Using an expedited process like Section 1–1–113 makes sense because it’s vitally important that issues like whether a candidate is qualified to be elected get resolved quickly and finally well before the election to prevent confusion, disruption, or the election of a candidate who is then blocked from taking office. But just because I think the legislature ought to include claims like this in Section 1–1–113 doesn’t mean that it in fact did, and Justice Berkenkotter’s argument that the legislature did not has some persuasive force. (You see how easy it is to express qualified support for an argument without merely describing it as “colorable?” That’s a strong sign that even Justice Samour knows that Section 3 of course actually applies to the President.) However, it’s also an issue that has now been settled definitively: the scope of Section 1–1–113 is a matter on which the Colorado Supreme Court’s opinion is final, and federal review of the meaning of Section 1–1–113 by the United States Supreme Court would be improper. Justice Berkenkotter’s opinion also has the feeling of having been written as a principal dissent before failing to secure the votes of the other dissenters. Alternately, it may have been written as an attempt to assemble a majority by pulling off justices from the majority who think that these issues are justiciable but could be persuaded that they can avoid having to reach the hard questions by interpreting Section 1–1–113 narrowly. In this regard, it feels very different from Justice Samour’s screed or Chief Justice Boatright’s dissent.

Chief Justice Boatright’s dissent is also about the scope of Section 1–1–113, but I find his arguments highly unpersuasive. He argued that Section 1–1–113 can be used to knock candidates off the ballot because they are unqualified, but only if their disqualification is based on “objective, discernible facts.” Boatright Dissent at 3. According to Chief Justice Boatright, Section 1–1–113 can be properly used to prevent a candidate who is under the minimum age or not a natural-born citizen or has already been elected twice from appearing on the ballot. However, because the question of whether a candidate is barred by Section 3 is more complicated, “requir[ing] courts to define complex terms . . . and make factual findings foreign to our election code,” id. at 4, he appears to conclude that Section 1–1–113 can only remove a candidate based on Section 3 if the candidate was previously convicted of insurrection. Id. at 11. Where he gets the requirement that Section 1–1–113 courts only handle simple matters is anyone’s guess, because he invents it out of the whole cloth. Moreover, the claim that age and place of birth are “objective facts,” whereas a question of whether someone has committed insurrection is not demonstrates a refusal to acknowledge that one of the key purposes of courts is precisely to determine the objective facts about complex matters through an adversarial, truth-finding process. Yes, resolving this matter requires courts to determine what facts are true and to interpret the meaning of legal provisions. That’s exactly what courts are for and do every day. Chief Justice Boatright also argues that the high bar to restore eligibility under Section 3 — a two-thirds vote of both houses of Congress — shows that the remedy is “extraordinary” and should be used sparingly. Id. at 10. The fact that the design of Section 3 clearly anticipates it having broad effects, with the restoration of eligibility treated as extraordinary rather than the initial disqualification appears to have eluded him. Ultimately, his preferred holding is a little unclear — he would have dismissed this case, but would he always require a criminal conviction for Section 3 disqualification? Under his understanding, could the Colorado legislature authorize a proceeding to determine eligibility under Section 3? His opinion provides very little guide, beyond saying that given the current text of the Colorado Election Code, he would dismiss this proceeding.

The third dissent, Justice Samour’s, is not primarily based on the Colorado Election Code but on principles of due process. “Due process” is the fundamental legal principle that no one may be deprived of “life, liberty, or property” without appropriate procedural safeguards to protect their rights. The amount of process that is due varies depending on circumstances — due process in a capital murder case requires more than in a regular criminal prosecution, which requires more than in civil litigation or an administrative action. Generally, due process requires a hearing before an unbiased officer (a judge or administrative agency official) with the opportunity to present evidence and make legal arguments, usually with the assistance of a lawyer (but usually without the right to have the government supply a lawyer free of charge, except in criminal cases). Judge Samour’s opinion argues that the expedited procedures of Section 1–1–113 are inadequate to deprive a candidate of eligibility to hold office under Section 3. He argues that Section 5 of the Fourteenth Amendment delegates authority to enforce Section 3 solely to Congress and that Section 3 is not self-executing— converting the grant of Congressional authority in Section 5 (in very nearly the same language as in the Thirteenth and Fifteenth Amendments) as a restriction that reduces the bold assertions of rights and restrictions of the Fourteenth Amendment to a grant of Congressional power to take action if Congress deems it appropriate and politically expedient. Judge Samour elevates an opinion by Chief Justice Salmon Chase sitting as a circuit justice (deciding cases while he was a member of the Supreme Court, but acting as a judge in the circuit court while doing so) into holy writ, treating it as essentially binding precedent that Section 3 cannot be enforced without Congressional action. As a formal matter, opinions written by justices while riding circuit are not decisions of the Supreme Court and are persuasive precedent, not binding precedent, but Judge Samour doesn’t let that stop him. He describes In re Griffin, 11 F. Cas. 7, 26 (C.C.D. Va. 1869) as the “jumping-off point for any Section 3 analysis” and as “The Fountainhead” and “wellspring” of analysis. Samour Dissent at 7–8. He provides precious little reasoning for why In re Griffin should be elevated above other contrary decisions (which he dismisses with the statement that “To the extent other state courts have concluded that their own state statutes allow them to adjudicate Section Three claims, I respectfully submit that they are flat out wrong.”). Id. at 32. Rather, he seems to assume that the statements of Chief Justice Chase are uniquely authoritative — as if they were binding Supreme Court precedent.

Justice Samour’s opinion also argues that while the Thirteenth, Fourteenth, and Fifteenth Amendments provide some rights that take place without Congressional action, they are limited to serving as a “shield” against other legal claims rather than as a “sword” to affirmatively seek legal action. Id. at 15–22. In doing so, he confuses the issue of what creates a cause of action — an ability to affirmatively seek relief in court — with what creates enforceable law. In this case, the cause of action is not created directly by the Fourteenth Amendment. Instead, it is created by Section 1–1–113, which explicitly authorizes voters to sue the Secretary of State to prevent a “wrongful act” in connection with a primary election. That provides all the “sword” that is needed. But to Justice Samour, even if he agreed with the majority’s interpretation of Section 1–1–113, he would view it as going beyond the authority of any state court to act because under his understanding, Section 3 can (uniquely among the qualifications to be President and uniquely among the sections of the Thirteenth, Fourteenth, and Fifteenth Amendments) only be enforced by Congress.

Justice Samour’s best argument is that Congress has established an enforcement mechanism for Section 3, and that that is the sole way in which Section 3 can be enforced. He points out that Congress passed the Enforcement Act of 1870, which created both a civil enforcement mechanism (authorizing government lawyers to bring what’s called a quo warranto proceeding to remove ineligible office-holders) and a criminal enforcement mechanism, criminalizing insurrection and specifying that people convicted of insurrection are ineligible to hold office. Id. at 18–27. The civil enforcement mechanism was subsequently repealed, but the criminal provision survives as 18 U.S.C. Sec. 2383. He argues that this litigation is an “end run around Sec. 2383,” id. at 26, although he also strangely leaves open to question whether Sec. 2383 is a Section 3 enforcement mechanism at all.

While this is Justice Samour’s best argument, it still isn’t very good. The core question this raises isn’t whether Congress has created an enforcement mechanism that applies in this case — it’s whether Congress pre-empted the entire field of Section 3 enforcement by passing and then repealing in part the Enforcement Act of 1870. Justice Samour doesn’t even attempt to conduct a proper pre-emption analysis — would separate state enforcement be inconsistent with the purposes of the federal statutory system? — because he’s working from an understanding where the Fourteenth Amendment reduced the power of the states and thus could not possibly be enforced by the states. That’s simply not a good analysis, because even with the shift in the balance of power between the states and the federal government, the Supremacy Clause requires state courts to treat the Constitution as binding law. There’s no reason to believe that where Congress has not explicitly stated that its enforcement process is the only appropriate one, states cannot enforce the clear textual command of Section 3 that oath-breaking insurrectionists are not eligible to hold office. Indeed, in an appropriate procedural posture, the Supremacy Clause affirmatively requires state courts to enforce Section 3. Also, the claim that this is an inappropriate aggrandizement of state power with regard to the federal government or could cause inconsistent rulings and chaos, id. at 42, ignores the obvious fact that the interpretation and application of Section 3 would be subject to review by the United States Supreme Court.

Justice Samour’s other key argument, at 32–42, is that a Section 1–1–113 proceeding deprives Trump of his due process rights because it’s not an ordinary civil or criminal litigation. He points to a variety of procedural differences, including the availability of various forms of discovery to gather evidence and build a case in ordinary civil litigation but not in a Section 1–1–113 proceeding, to suggest that enforcing Section 3 without a full trial violates due process rights. He even suggests that perhaps a jury trial ought to be required, or maybe even proof beyond a reasonable doubt. Id. at 39–40. He contends that this proceeding was radically unlike anything he’s seen in thirty-three years of practice.

All of this is basically nonsense. Due process requires appropriate procedures, but ample discovery is simply not required to provide due process. Indeed, many criminal proceedings provide only extremely limited discovery rights. Criminal defense lawyers around the country would be amazed to discover that they have a right to depose the prosecution’s witnesses before trial as a basic matter of due process. As for a jury, injunctive relief is a matter of “equity,” not “law” (terms dating back to differing courts in England centuries ago). The right to a jury trial is typically only available in actions at law, with cases seeking only injunctions — court orders to do or not do a thing — generally having no right to a jury. And courts every day enter preliminary injunctions on the basis of abbreviated legal proceedings that are accelerated relative to ordinary litigation. Indeed, they even enter temporary restraining orders without providing any opportunity for the adverse party to respond at all, with the only adversarial process after the order issues. Due Process is flexible and can be tailored to a need for speedy resolutions in specific contexts. With Section 3, there is a vital public interest in having this matter resolved now — before the primaries — instead of having an entire election process before finding out whether a major candidate is even eligible to participate.

It frankly boggles my mind to think that Justice Samour believes that Trump was railroaded without an adequate opportunity to develop evidence, present his case, and argue his legal points in this proceeding. Notably, he provides no argument whatsoever of how the limited procedures harmed Trump — of what evidence he would have been able to put on, or how he needed discovery to avoid unfair surprise, or what legal arguments he was unable to make to the court. Whether Section 1–1–113 authorized an inquiry into whether Trump was barred by Section 3 is a reasonable question as a matter of Colorado state law. Likewise, the district court did not conform in every detail of Section 1–1–113, extending some deadlines to allow for a full and fair process. That could be a reason for the Colorado Supreme Court to take action, again as a matter of state law requirements, although it appears to me that the district court’s case management was entirely reasonable and provided more due process, not less. But the claim that this procedure was so devoid of fundamental fairness as to render it a violation of due process seems to me not merely wrong, but laughably so. I must note in passing that Justice Samour suggests that the district court was wrong to take expert testimony on the meaning of the Fourteenth Amendment, because determining the law is the judge’s duty. Id. at 40. As I’ve said before, I think he is likely correct, but I also do not see how it could be anything other than harmless error, because the court could have considered precisely the same materials through amicus briefs or argument and reached the same conclusions.

All told, Justice Berkenkotter’s dissent makes measured, reasonable, and thoughtful arguments about why the majority was incorrect in its interpretation of Section 1–1–113, though I think the majority has substantially the better position. Chief Justice Boatright makes a similar argument, but he would create new and imaginary requirements in Section 1–1–113 that courts may only consider easy questions of fact and law. It’s harder to find a better example of judges flinching and lacking the moral courage to address the vital question of whether Trump is ineligible than in Chief Justice Boatright’s opinion. But Justice Samour’s opinion reads to me as hostile, poorly reasoned, and seeking to create new due process rights to ensure that even actions that he acknowledges could be described as “horrible”, Samour dissent at 1, should not be subjected to court review. Justice Samour claims to understand the gravity of this case: “Of course, if President Trump committed a heinous act worthy of disqualification, he should be disqualified for the sake of protecting our hallowed democratic system, regardless of whether citizens may wish to vote for him in Colorado.” Id. at 42. And yet he invents new procedural rights to make sure that, under his analysis, the district court should not have reached the substantive issues at all. The district court’s careful efforts to balance speed and fairness with a full opportunity to put on evidence and hear arguments over the course of a five-day trial with subsequent briefing and oral arguments, leading up to a careful and exhaustive written opinion becomes a travesty of procedural unfairness, utterly beyond the pale and far insufficient to justify judicial action.

What’s Next: Review by the Supreme Court of the United States

Trump’s campaign has already stated that they will file a petition for a writ of certiorari with the Supreme Court. While the Supreme Court has discretion over which cases it considers, requiring four justices to vote to hear a case before a case is even fully briefed, I find it all but certain that the Supreme Court will grant cert in this case. The stakes are too high, the matter too important, and the need for national uniformity too important for the Court to deny review.

The Supreme Court will only be able to review parts of the decision of the Colorado Supreme Court that depend on federal law. The Supreme Court acts as the final arbiter of the meaning of the United States Constitution. Thus, questions about whether Congress’s power to enforce Section 3 is exclusive of other enforcement mechanisms, what “engage in insurrection” means, whether the Presidency is covered by Section 3, and whether the First Amendment protects Trump’s speech could all be properly before the Court. Conversely, the Supreme Court is supposed to accept as final a state court of last resort’s interpretation of state law matters. So even if a majority of the Supreme Court thinks that Justice Berkenkotter’s dissent has the best argument, the Supreme Court should not be able to overturn the Colorado Supreme Court’s interpretation of Section 1–1–113. I say “should not” and not “can’t” because ultimately, the Supreme Court can do whatever five of its members want to do and think they can get away with politically. They can invent new due process rights or declare that unusual decisions in a state court system deprive a candidate of due process, even if that’s really reviewing a state law matter, if they want to. That’s fundamentally what they did in Bush v. Gore, and we may see a similarly lawless decision here.

My expectation, however, is that they will avoid those issues. There’s simply no reason to go there, because they have so many other ways of resolving this case if they want to reverse the Colorado Supreme Court. I think the most significant issues are: (1) Is Section 3 enforceable without Congressional action? (2) Are Section 3 claims nonjusticiable political questions? (3) Is the President covered by Section 3? (4) Did Trump “engage in insurrection”? and (5) Was Trump’s speech protected by the First Amendment? The Supreme Court could reverse the Colorado Supreme Court on the basis of any of those issues without undercutting their own legitimacy in any significant way, so I would be surprised if they went beyond those areas. They might also consider an argument similar to Justice Samour’s: did the proceedings in this case comply with due process? Frankly, that would surprise me; in my eye, the due process issue is even less susceptible to good faith disagreement than the question of whether the President is covered by Section 3, which I think is fairly described as “colorable,” by which I mean “dumb and wrong but not ridiculous.” In contrast, the political question argument, First Amendment argument, and question of whether Trump’s actions were “engaging in insurrection” are all areas where the Court could easily write a respectable opinion throwing out the case, if they want to. They could also use the due process argument, question of whether the President is covered by Section 3, or the idea of Congress having the sole authority in this area, but I think those would be substantially weaker arguments. They would still be entirely proper areas for the Supreme Court to rule on, and indeed if the Supreme Court affirms the Colorado decision, it will implicitly be agreeing that the Colorado Supreme Court got all of those questions right — something that’s not true of the purely state law matters of the scope of Section 1–1–113 of the Election Code. Similarly, the evidentiary decisions of the district court are based on Colorado state evidence law, and so should not be subject to Supreme Court review.

In addition to questions of what issues are properly before the Court, the Supreme Court is supposed to be limited in its ability to review factual findings as opposed to legal holdings. As is often said, the Supreme Court is a court of law, not a court of error, meaning that it exists to make sure that the law is correctly interpreted, not to fix errors of fact-finding by lower courts. It should apply a highly deferential standard of review to factual findings, and indeed the fact that the appeal court below affirmed the factual findings is supposed to make them all but unreviewable. However, because the Supreme Court can properly rule on the application of the law to the facts, the Court can easily state that a lower court applied the wrong standard — in this case, that it’s understanding of what is necessary to constitute engaging in insurrection was wrong — and thus overturn a decision ostensibly on legal grounds but really because it disagrees with the fact-finding below.

No one who isn’t the Justices knows how the Court will ultimately rule on this case, and they may not know. Anyone who tells you otherwise is hubristic or a liar. The politics of this case will weigh heavily — the Justices can’t ignore the consequences of a monumental decision like whether a leading candidate for President can participate in the election at all. And the Justices will have been reading the same articles talking about the threat of Trump becoming a dictator, using the military to quash domestic opposition, and embracing fascistic language treating political opponents and immigrants as “vermin” who “poison our blood” as all the rest of us have. But at least some of the Justices will also try to call things as best as they can, without regard to the political consequences — they may not succeed, but at least some will care about a feeling of acting with integrity and behaving like judges. Put another ways: Supreme Court Justices are political actors and can act as partisans, but they’re not just political actors and they have special constraints and interests that are different from the President, cabinet officers, or members of Congress.

Moreover, even to the extent that partisan considerations come into their decision-making, those cut in both directions. For establishment Republicans who do not like the current MAGA direction of the party, knocking Trump off the ballot could achieve their ideal result of getting Trump out of the way without losing the election. Conversely, many people believe that Trump has unique weaknesses as a candidate such that President Biden has a better re-election chance against Trump than against anyone else. A die-hard partisan Democrat might conclude that keeping Trump on the ballot is essential to ensuring a Democratic victory next November, whereas if he is disqualified it might result in President Haley or DeSantis. So even if we assumed that Justices will vote purely based on political consequences — which I do not think is fully accurate — the outcome is not a foregone conclusion.

If I had to guess, I would say that I view it as meaningfully more likely than not that the Court will reverse the Colorado decision, likely on justiciability grounds or by saying that Section 3 can only be enforced through Congressional action. However, I believe that there is a substantial chance that the Court will affirm. I think that Justices Thomas and Alito are very likely to vote to reverse, and Justices Kavanaugh and Barrett are likely to vote to reverse. I consider Chief Justice Roberts and Justice Gorsuch to be toss-ups. And I think that Justices Sotomayor, Kagan, and Brown are likely to vote to affirm. That leads directly to my meaningfully more likely than not to reverse, but far from confident — if everyone votes the way I expect, Roberts and Gorsuch have to both break in favor of affirming to affirm. But I don’t consider any of the Justices to be locks, and I wouldn’t be surprised to be wrong about any of them (well, maybe a little about Alito or Thomas).

Two last parting thoughts about Supreme Court review: Many people assert that all of the Justices appointed by Trump should recuse themselves. That’s not consistent with Supreme Court practice, and I think it would be a mistake for them to do so. There is well-established law in many different areas that Justices are not expected to recuse themselves from all litigation in which the President who appointed them is a party. There are also real costs to the definitiveness of Court rulings to having fewer than nine Justices participate. Justice Thomas should recuse himself because of his wife’s active involvement in the January 6 effort to overturn the results of the election. That is a direct conflict. Even there, an argument can be made from the “rule of necessity,” the principle that if no other judge is available a judge can rule on a case even though they have a conflict that would ordinarily require them to recuse themself. Justice Thomas has sole authority over his own recusal decisions, and he could, consistent with Supreme Court practice, conclude that the risk of an evenly divided Court in this case requires him to participate despite having a conflict that should keep him off the case. Of course, applying the rule of necessity to cases where the Court would otherwise be evenly divided has the effect of not recusing in the only cases where the conflict could potentially alter the outcome. Thus, the standard practice is to recuse because of conflicts, and if there is a 4–4 split, the lower court’s opinion is affirmed but without creating binding precedent. That, of course, would be more problematic in this case, where the need for a final decision from the Supreme Court is driven by the importance of the case rather than by the need to eventually get to a uniform interpretation of the law. In any event, I find it highly unlikely that any of the Justices will recuse themselves, though Justice Thomas should.

Finally, there are a variety of procedural devices that the Supreme Court could use to try to avoid making a decision. Those would be the worst possible outcome, because we absolutely need this issue settled now. But the Supreme Court could decide that the case isn’t ripe, and vacate the Colorado Supreme Court’s decision without reaching the merits. Or the Court could agree with Justice Samour and hold that Section 1–1–113 violates requirements of due process, while leaving open the possibility that some other proceeding that allowed more discovery might still declare Trump ineligible. Or the Court could simply delay acting until after January 5, resulting in the Colorado Supreme Court’s decision being stayed by its own terms, and then declare that it’s too late to handle the appeal because access to the primary ballot has become moot. That would be incorrect — this is a classic case of “capable of repetition yet evading review,” and none of the operative facts would change before the general election — but if the Supreme Court lacks the fortitude to resolve the case on the merits, it could use procedural matters like that to avoid having to decide. However, the only thing that would do is create the likelihood of more chaos and disruption later. Thus, even though I think Trump represents a serious threat to American democracy, clearly engaged in insurrection, and thus has no place on any ballot, I think a Supreme Court decision rejecting the Section 3 argument definitively would be better than one that dodges the question and keeps the issue alive. Far better, of course, would be to affirm the Colorado Supreme Court’s decision in its entirety.