George Conway is a constitutional lawyer and a conservative Republican who is an outspoken critic of Donald Trump. His tweets are memorable, as are his appearances on MSNBC, where he is often a guest. He also writes for The Atlantic, where he published his commentary on the Supreme Court’s latest Trump decision. Conway was initially dubious about Colorado’s case for disqualifying Trump but, upon reflection, decided that the Constitution plainly required the Supreme Court to exclude him from the ballot. In his view, the case was not decided on its merits and the legal argument was “utterly flimsy.”

In this post, he analyzes the decision and points out its inconsistencies and fallacies. I am quoting only his conclusion. If you want to read it in full, open the link or subscribe to The Atlantic:

This case wasn’t about legal reasoning; it was about fear. Fear from all the justices, conservatives and liberals, about the impact on the Court of removing Trump from the ballot. And the second paragraph of Justice Barrett’s opinion bleeds fear onto the page. “This is not the time to amplify disagreement with stridency,” she writes. Was that directed at any of her colleagues? Justice Sotomayor’s opinion is hardly strident at all, as far as Supreme Court separate opinions go, even if it makes little more sense than the majority’s. “The Court has settled a politically charged issue in the volatile season of a Presidential election,” Barrett continues. “Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine justices agree on the outcome of this case. That is the message Americans should take home.”

Each of these sentences is true. But why say this? Why not let the Court’s unanimity of judgment and reasoning speak for itself, including that of Sotomayor’s concurrence? Because Justice Barrett—and, I suspect, all the justices—were terrified by the case and what it actually required them to do: affirm Trump’s disqualification.

That may sound depressing, but I see reason to take heart. To be sure, it’s a shame, because this was one circumstance where it would have been nice for the Supreme Court justices to show the courage that some of their colleagues in the lower courts have shown when faced with Trump—judges like Lewis Kaplan, in the Carroll case; Tanya Chutkan, in the federal January 6 case; Justice Arthur Engoron in Trump’s New York civil fraud case; and Justice Juan Merchan, in the upcoming New York criminal case stemming from Trump allegedly cooking his books to pay off an adult-film star. Ultimately, though, litigation will not save us from Trump, and no one should believe that it will.  

But litigation will have done its part—even Trump v. Anderson, with its dearth of reasoning and not-quite-satisfactory result. Because there was one very important thing the Court didn’t do yesterday. It didn’t cast one word of doubt, and expressed not a hint of a disagreement with, the amply supported factual conclusion reached by the Colorado courts: Donald Trump engaged in an insurrection. Just as Trump today stands as an adjudicated sexual abuser, so too he remains an adjudicated insurrectionist. It is up to us, as voters, to make use of those findings come November.

Put another way: You can’t always get what you want, but if you try sometimes, you get what you need.

David French is a regular columnist for The New York Times. He writes here about the radical implications of the Supreme Court ruling on Trump’s eligibility to run for president.

As of Monday, March 4, 2024, Section 3 of the 14th Amendment of the Constitution is essentially a dead letter, at least as it applies to candidates for federal office. Under the U.S. Supreme Court’s ruling that reversed the Colorado Supreme Court’s decision striking Donald Trump from the state’s primary ballot, even insurrectionists who’ve violated their previous oath of office can hold federal office, unless and until Congress passes specific legislation to enforce Section 3.

In the aftermath of the oral argument last month, legal observers knew with near-certainty that the Supreme Court was unlikely to apply Section 3 to Trump. None of the justices seemed willing to uphold the Colorado court’s ruling, and only Justice Sonia Sotomayor gave any meaningful indication that she might dissent. The only real question remaining was the reasoning for the court’s decision. Would the ruling be broad or narrow?

A narrow ruling for Trump might have held, for example, that Colorado didn’t provide him with enough due process when it determined that Section 3 applied. Or the court could have held that Trump, as president, was not an “officer of the United States” within the meaning of the section. Such a ruling would have kept Trump on the ballot, but it would also have kept Section 3 viable to block insurrectionists from the House or Senate and from all other federal offices.

A somewhat broader ruling might have held that Trump did not engage in insurrection or rebellion or provide aid and comfort to the enemies of the Constitution. Such a ruling would have sharply limited Section 3 to apply almost exclusively to Civil War-style conflicts, an outcome at odds with the text and original public meaning of the section. It’s worth noting that, by not taking this path, the court did not exonerate Trump from participating in an insurrection.

But instead of any of these options, the court went with arguably the broadest reasoning available: that Section 3 isn’t self-executing, and thus has no force or effect in the absence of congressional action. This argument is rooted in Section 5 of the amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

But Section 5, on its face, does not give Congress exclusive power to enforce the amendment. As Justices Elena Kagan, Sotomayor and Ketanji Brown Jackson pointed out in their own separate concurring opinion, “All the Reconstruction amendments (including the due process and equal protection guarantees and prohibition of slavery) ‘are self-executing,’ meaning that they do not depend on legislation.” While Congress may pass legislation to help enforce the 14th Amendment, it is not required to do so, and the 14th Amendment still binds federal, state and local governments even if Congress refuses to act.

But now Section 3 is different from other sections of the amendment. It requires federal legislation to enforce its terms, at least as applied to candidates for federal office. Through inaction alone, Congress can effectively erase part of the 14th Amendment.

It’s extremely difficult to square this ruling with the text of Section 3. The language is clearly mandatory. The first words are “No person shall be” a member of Congress or a state or federal officer if that person has engaged in insurrection or rebellion or provided aid or comfort to the enemies of the Constitution. The section then says, “But Congress may by a vote of two-thirds of each house, remove such disability.”

In other words, the Constitution imposes the disability, and only a supermajority of Congress can remove it. But under the Supreme Court’s reasoning, the meaning is inverted: The Constitution merely allows Congress to impose the disability, and if Congress chooses not to enact legislation enforcing the section, then the disability does not exist. The Supreme Court has effectively replaced a very high bar for allowing insurrectionists into federal office — a supermajority vote by Congress — with the lowest bar imaginable: congressional inaction.

As Kagan, Sotomayor and Jackson point out, this approach is also inconsistent with the constitutional approach to other qualifications for the presidency. We can bar individuals from holding office who are under the age limit or who don’t meet the relevant citizenship requirement without congressional enforcement legislation. We can enforce the two-term presidential term limit without congressional enforcement legislation. Section 3 now stands apart not only from the rest of the 14th Amendment, but also from the other constitutional requirements for the presidency.

In one important respect, the court’s ruling on Monday is worse and more consequential than the Senate’s decision to acquit Trump after his Jan. 6 impeachment trial in 2021. Impeachment is entirely a political process, and the actions of one Senate have no bearing on the actions of future Senates. But a Supreme Court ruling has immense precedential power. The court’s decision is now the law.

It would be clearly preferable if Congress were to pass enforcement legislation that established explicit procedures for resolving disputes under Section 3, including setting the burden of proof and creating timetables and deadlines for filing challenges and hearing appeals. Establishing a uniform process is better than living with a patchwork of state proceedings. But the fact that Congress has not acted should not effectively erase the words from the constitutional page. Chaotic enforcement of the Constitution may be suboptimal. But it’s far better than not enforcing the Constitution at all.