STEVE INSKEEP, HOST:
So I got a chance yesterday to listen to the Supreme Court arguments over keeping Donald Trump off the presidential ballot. Our colleague Scott Detrow anchored live coverage on NPR with audio as lawyers spoke and the justices posed questions in the courtroom. It sounded like liberal and conservative justices alike were skeptical of Colorado's ruling that Trump is not eligible to run because he engaged in an insurrection, meaning his failed effort to overturn his 2020 election defeat. Constitutional law scholar Kate Shaw is at the University of Pennsylvania, and she was listening, too. Good morning.
KATE SHAW: Good morning.
INSKEEP: I just want to note, some critics of Trump found this to be obvious, a slam dunk. The Constitution has this language about how you can't hold office if you previously took an oath, and then you engaged in insurrection. And then everybody saw the January 6 attack. That's what critics of Trump have said. What makes it less obvious, at least in the eyes of the justices?
SHAW: You know, it is obvious in many ways if you take seriously the text of the Constitution that seems to disqualify individuals from office if they engaged in insurrection and also if you take seriously the history of this language in the Constitution, which was clearly added to exclude from public office insurrectionists. So for a court that holds itself out as privileging these, you know, text and history sources, it would seem to be a very difficult case, actually, for President Trump and a good case for Colorado.
But interestingly, in this argument, the justices seemed much less focused on text and history than on the practical, right? So as Justice Elena Kagan, one of the court's Democratic appointees, basically asked, why should a single state get to decide who gets to be president? So I think they were really focused on the practical consequences of letting this Colorado Supreme Court opinion stand. And that seemed to be front of mind for all of them.
INSKEEP: Oh, interesting. Now, they did raise a bunch of technicalities. For example, does the language about an officer of the United States - does it include the president of the United States? And who counts as having previously taken an oath and that sort of thing? Were you unimpressed by the technicalities here?
SHAW: You're right that the technicalities did come up. And you have all these distinct terms in the amendment. Officer and office both separately appear. What does insurrection mean? The disqualification applies to someone who holds office, but does that mean you still get to run for office? And then maybe Congress can remove the disqualification because the amendment provides for that. So, you know, those arguments were ventilated. There was some probing of them, but it almost seemed perfunctory, honestly.
I really thought that what was driving the justices sort of throughout was this kind of, what would it mean for our system of government for individual states to kind of kick very important, you know, prominent, maybe not independent candidates off - because that does sometimes happen - but a major party candidate off their ballots? Would this mean that Colorado sets, essentially, the agenda for the rest of the nation, or that other states will follow suit? Or a couple of the justices floated the possibility of retaliatory removals. Maybe red states try to keep Biden off their ballots. And that just seemed to suggest a state of chaos ensuing in presidential elections that the justices seemed very concerned about essentially setting in motion by ratifying what the Colorado court here did.
INSKEEP: Is there a case to be made that, really, Congress ought to decide this? There is an additional clause, number 5, which says that Congress shall enforce this by appropriate legislation.
SHAW: You know, there is a case. And early on - so this amendment gets ratified in 1868. And in the first years following the ratification, there is some congressional action to actually implement the amendment. There's even, you know, a reference in an early case that maybe Congress has to pass legislation, although Trump's lawyers didn't rely solely on that early case. So there's an argument from history that Congress has done this before. And there's a pragmatic argument that, again, Congress regulates for the whole country, and Congress should do it.
But the question of whether the amendment requires congressional action as the only way to actually enforce its provisions, I think that's actually kind of a stretch, again, just from the text and the history of the amendment, usually the things the justices think are most important. But again, they didn't seem guided by those here.
INSKEEP: Very briefly, there are some analysts who speculate that the court is going for a split decision here. They may rule for Trump in keeping him on the ballot but then rule against Trump, who in a separate case is seeking absolute immunity from prosecution as a former president. What do you think about that?
SHAW: I think that's very likely in terms of how they'll come down as a bottom line matter. The arguments for absolute presidential immunity, I think, are exceedingly weak. And the D.C. circuit rejected them. But timing matters a great deal here. So it only really matters if they rule against Trump in the immunity case if they do it fast enough that a trial can really happen this spring, well in advance of the presidential election.
INSKEEP: Kate Shaw, thanks for your insights. It's been a pleasure talking with you.
SHAW: Thanks so much for having me.
INSKEEP: She is a professor at the Carey Law School at the University of Pennsylvania. Transcript provided by NPR, Copyright NPR.
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