The Supreme Court will decide whether the Colorado court was right to bar the former president from the ballot.
Donald Trump is well on his way to becoming history’s greatest litigation loser ever. But in the multifront war of Trump v. Seemingly Everyone Else, he has just prevailed in one small skirmish: The Battle of the Questions Presented.
Late Friday afternoon, the Supreme Court of the United States agreed to review the Supreme Court of Colorado’s decision that held Trump ineligible to serve again as president under Section 3 of the Fourteenth Amendment, the provision barring insurrectionists from public office. That came as no surprise.
The nation’s high court also ordered an unusually fast schedule, with oral argument to be held in 34 days—on February 8. That, too, came as no surprise. All parties to the case agreed that the Court should hear the case, and do so expeditiously, so that states and voters could know before the presidential-primary season ends whether Trump was eligible for office.
What was unusual was the Court’s choice to grant review without specifying the particular legal issues it intends to decide.
George T. Conway III: The Colorado ruling changed my mind
Both the Colorado Republican Party and Trump had petitioned the Supreme Court to take the case. The Court granted Trump’s petition and did not rule on the Colorado GOP’s. What’s somewhat odd about that is that Trump’s petition was itself odd—very odd. In the days of Marbury v. Madison, the Supreme Court would take up entire cases, and all of the issues presented by them. As the law professor Ben Johnson recently put it in The Atlantic, the Court “was explicit that its duty was ‘to give judgment on the whole record’—no cherry-picking of questions.” In large part because of the mind-numbing volume of litigation presenting federal issues in the United States today, however, the Supreme Court essentially no longer does that when it reviews lower-court decisions. It not only chooses what cases to take; it also chooses which specific issues within those cases it wants to decide.
The Court ordinarily makes these choices on the basis of the issues the parties seeking review point out in what is called their “petition for certiorari.” As a result, arguably the most important part of a petition for certiorari doesn’t appear in the body of the brief; it appears before the table of contents, on the page just inside the cover. It is there that Rule 14.1(a) of the Supreme Court Rules requires petitioners to list “the questions presented for review, without unnecessary detail.” The questions must be “short,” and not “argumentative or repetitive.” Most important: “Only the questions set out in the petition, or fairly included therein, will be considered by the Court.”
These are supposed to be specific questions of law and not facts. In other words, you can ask the Supreme Court to decide whether a court of appeals correctly held that the Interstate Trafficking in Unlawfully Bright Widgets Act of 2024 applies to yellow widgets, but not whether the district court correctly found Acme Company’s widgets to be yellow and not chartreuse. The Supreme Court virtually always takes lower-court factual findings as they come.
In accordance with these practices, the Colorado GOP’s petition for certiorari presented three discrete questions of law: whether the president is covered by Section 3 of the Fourteenth Amendment; whether Section 3 can be enforced only through congressional legislation; and whether Trump’s disqualification violated the party’s First Amendment rights.
Trump’s petition took an entirely different approach—one that didn’t conform with the ordinary rules and practices. His lawyers presented only one question, and it wasn’t a discrete or pointed question of law but rather a blunderbuss one: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?”
This was a Cuisinart of a question. Only in the body of Trump’s petition could you find all the ingredients that went into it. In its response, opposing counsel took Trump’s lawyers to task—I think correctly—for “lump[ing] no fewer than seven distinct legal and factual issues into a single imprecise question presented.”
There are at least three possible reasons Trump’s counsel took this approach. One may be a relative lack of experience in the Supreme Court. Trump, as we all know by now, has trouble retaining lawyers suitable for the tasks he presents them with, because lawyers value their reputations and their licenses. Just the other day, even Mark Meadows was able to hire a former solicitor general to bring a case to the Supreme Court. But the best lawyers won’t work for Trump.
Another reason is the “audience of one” problem that everyone working for Trump faces. The Cuisinart question reeks of narcissism. It says: Look at what they did to me! So unfair! It translates easily from the original Trumpish: Wasn’t the Colorado Supreme Court so very, very mean to me?
But I’d bet the most significant explanation is the weakness of Trump’s case.
When you ask “Should Trump be stricken from the ballot?,” the typical reaction you get is: Are you serious? How could it be possible to take a party’s leading candidate off the ballot? I know because that was essentially my initial reaction—until I really started digging into the case and saw how Trump shouldn’t prevail on any of the subsidiary issues that ought to actually decide the case.
Indeed, when you pick apart the many subsidiary legal issues swirling in Trump’s certiorari blender, they dissolve one by one. Take the contention that it is too difficult for courts to figure out standards by which to determine what it means to “engage” in an “insurrection.” The simple response to that is: You’re kidding, right? You mean the courts can divine the meaning of “equal protection of the laws” under Section 1 of the Fourteenth Amendment but not “insurrection” under Section 3?
Or the argument that the president is not an “officer of the United States” under Section 3. Wait, what? You’re suggesting that a document that refers to the presidency as an “office” literally dozens of times, and requires the holder of that office to take an “oath of”—guess what?—“office” says that the person holding that office isn’t an officer? Oh, and check out this brand-new research paper that contains an avalanche of historical material demonstrating that, when the Fourteenth Amendment was ratified, “the President was regularly thought to be and talked about as an officer of the United States.” Did you know that, in numerous proclamations, President Andrew Johnson variously referred to himself as an “officer,” the “chief executive officer,” and the “chief civil executive officer” of the United States?
The petition also claims that Section 3 requires Congress to enact implementing legislation under Section 5 before Section 3 can be enforced. Sorry. That’s not what the Supreme Court has held as to other provisions of the Reconstruction amendments, including the Equal Protection Clause.
And, to top matters off, we find this question buried deep in Trump’s petition: Does the Supreme Court really think the former president “engaged in insurrection” under Section 3? But that’s a factual question, the sort the Court doesn’t normally decide. The Colorado court reviewed every possible meaning of “insurrection,” and that still didn’t help your case. And even your lawyers don’t think the Supreme Court’s going to save you there, or else they wouldn’t have relegated it to page 26 of your brief.
In other words, Trump’s Cuisinart tries to blend a bunch of weak issues into a stronger one. In appellate courts, that usually doesn’t work.
All of this still leaves—highlights, really—a mystery: Why did the Supreme Court let Trump’s question stand? Ordinarily, when the Court doesn’t like the questions presented by a certiorari petition, it does one of two things: It doesn’t take the case, or, if it does take the case, it rewrites the questions as it sees fit. And, in fact, Trump’s opponents asked the Court to break the big question down to its component parts.
But the Court didn’t do that. And it probably didn’t do that because trying to get nine people to agree on how to reformulate the questions presented would have taken time when time is of the essence. The Court and the parties will have to sort out in the next 30-odd days what the case will ultimately be about.
That’s good news and bad news for both sides. It’s good news for Trump, in that the case is one big grab bag in which the Court can dig around until it finds some way (maybe not a particularly convincing one) to reverse the decision—if that’s what it’s determined to do. The Court could end up once again proving the truth of Justice Oliver Wendell Holmes Jr.’s famous adage that “Great cases like hard cases make bad law.”
Or maybe not. The reason the Court had to take the Cuisinart question was because Trump and the GOP couldn’t find a dispositive legal proposition that the Colorado court clearly got wrong.
In short, anything and everything seems to be in play, and the people who think the Court is going to reverse no matter what, or find a way to elide the issues somehow, may well be right. But many cases on appeal evolve during briefing and argument, and by the time oral argument is over on February 8, we may all be focused on an aspect of the case that hasn’t been developed yet. Trump and his allies haven’t found the magic answer, and those who think they have, or that the Court will do it for them, may well find themselves surprised in a matter of weeks. We’ll soon see precisely how great and how hard the case turns out to be.
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