When the United States Supreme Court hears arguments in the case to determine if disgraced former President Donald Trump is legally prohibited from holding public office, there is a strong chance that his greatest obstacle will be convincing conservatives that he appointed, Justices Neil Gorsuch and Brett Kavanaugh.
The case, Donald J. Trump v. Norma Anderson will turn on an interpretation of Section 3 of the 14th Amendment of the U.S. Constitution known as the Disqualification Clause, and its language barring certain former elected and appointed officials from holding office if they took part in an insurrection.
Trump has been disqualified from the ballot in Colorado and Maine—and it is no coincidence that those are the only two states that have substantively grappled with whether the 14th Amendment bars him from the ballot and reached a final decision based on the merits.
Two conservative law professors affiliated with the Federalist t Society — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — wrote that the 14th Amendment makes Trump ineligible.
In a column published in the Atlantic Laurence Tribe, a liberal constitutional scholar at Harvard Law School, and retired conservative judge J. Michael Luttig both support the notion that the Constitution stands between Trump and the White House.
Other individuals and groups have brought ballot eligibility challenges in other states across the country, some of which are pending and many of which have failed.
None of the cases that have been dismissed reached the stage where a court heard evidence and ruled on the merits, which includes questions of whether Trump is an insurrectionist and whether the 14th Amendment applies in his case.
Every case that failed to bar Trump did so either because the plaintiff lacked standing to bring a challenge or because a specific state’s law didn’t allow such a challenge in the presidential primary.
Today, the Supreme Court will confront the critical question of Trump’s eligibility to return to the White House by hearing arguments in an unprecedented case that gives the justices a central role in charting the course of a presidential election for the first time in nearly a quarter-century.
The justices will decide whether Colorado’s top court was correct to rule that the former president is ineligible for the presidency under the 14th Amendment, a post-Civil War provision of the Constitution because he engaged in insurrection before and during the assault on the U.S. Capitol on Jan. 6, 2021.
At the heart of the case is Section 3 is the Disqualification Clause. It states:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
The evidence convincingly established that Trump initiated and conspired with others to prevent Congress from certifying the results of the general election of Joseph Biden as the 46th President of the United States.
Colorado’s Supreme Court ordered Trump off the ballot after concluding that the Jan. 6, 2021, attack on the Capitol was an insurrection and that Trump was the clear instigator.
The Supreme Court has the power to settle the matter, but it’s not clear that it will.
The justices are due to hear arguments today, and though they are widely expected to resolve whether he is eligible, they could choose to decide the case on narrow grounds that sidestep the question of insurrection.
Maine’s secretary of state also ruled Trump ineligible, but a state court there said the United States Supreme Court needs to have its say before the secretary of state can make a final decision.
“My bottom line is that the Colorado opinion is a serious and careful opinion that reaches a reasonable conclusion that Trump is disqualified,” said Professor Richard L. Hasen, an internationally recognized expert in election law who directs UCLA Law’s Safeguarding Democracy Project.
Trump’s legal arguments in the case are weak and even bizarre, as one of them is that the president was not “an officer of the United States” and another is that Trump did not take the oath of office specified in the 14th Amendment.
Other arguments assert that Colorado made the ruling lacking evidence that Trump took part in an insurrection and that the state Supreme Court ruling conflicts with the Constitution’s Electors Clause.
More than 80 amicus curiae, or friend-of-the-court briefs, were filed with many different legal theories or interpretations of the law but there was a consensus that the Supreme Court should decide the case quickly.