Jackson, however, appeared to agree with that framework as a potential solution for the case. She tried to suggest that the amendment’s drafters intentionally omitted the presidency because their Reconstruction-era concerns were focused on other problems. “The pressing concern, at least as I see the historical record,” she explained, “was actually what was going on at lower levels of the government, the possible infiltration and embedding of insurrectionists into the state government apparatus and the real risk that former Confederates might return to power in the South via state-level elections either in local offices or as representatives of the states in Congress. And that’s a very different lens.”
But that would lead to an arguably even more absurd reading: that the amendment’s drafters thought ex-Confederates should be excluded from every public office in the republic except the one that commands the nation’s armed forces. If they sought to exclude anti-constitutional figures from public life, why would they leave an exception for the office where they could do the most damage?
I often note that oral arguments can be an imperfect window into the court’s thinking; the justices, given time to ruminate, often reach conclusions in their final decision that weren’t hinted at during their public deliberations. This does not seem to be one of those cases. Almost all of the justices seem fundamentally opposed to the idea that they should allow Colorado to disqualify Trump from the ballot. (Sotomayor was the only one who didn’t signal as much.) How exactly they get from that sensation to a workable ruling remains to be seen. But it would be stunning after Thursday’s arguments if the case went any other way.