The US Supreme Court will hear oral arguments this week in former President Donald Trump’s appeal against the decision to exclude him from the ballot in the Colorado Republican primary for this year’s presidential election.
The Colorado Supreme Court ruled in December that Trump was disqualified from holding the office of president under Section 3 of the 14th Amendment to the Constitution because he engaged in an insurrection on 6 January 2021.
Because the Republican primaries have already begun (Coloradoans vote on 5 March) and the US Supreme Court’s current term ends on 30 June, the nine justices have very little time to consider such a momentous dispute with so many constitutional issues to be clarified.
So, what will happen this week and how might the court rule?
How does the Supreme Court operate?
Each side is usually allotted 30 minutes to present their case in oral arguments, but the lawyers are almost always interrupted by questions from the justices. The questioning can provide clues as to how the justices might be leaning.
The justices then meet in private to discuss the case and form a preliminary opinion. The chief justice, John Roberts, has the power to determine which of the justices will draft the written opinion, but only if he is in the majority. If not, that power transfers to the next most senior justice in the majority.
The draft opinion will be circulated to the other justices and is subject to their suggestions and possible alterations. This is almost a political exercise because the justice writing the opinion needs to get four other justices to sign the draft or at least support the decision.
He or she would also want to minimise the number of dissenting or concurring opinions that would inevitably undermine the force of the court’s majority opinion. It is an exercise in coalition-building to forge that majority, which is never certain until this final stage of the process.
What are the constitutional issues?
The justices face a seemingly intractable choice between two fundamental values: defending the rule of law and protecting democracy.
Trump’s appeal raised three major constitutional questions the Supreme Court will have to decide:
* whether Section 3 applies to Trump as a sitting president * what it takes to determine if someone is guilty of insurrection * and whether the states have the power to enforce Section 3 without prior approval from Congress.
On the first issue, Trump believes Section 3 doesn’t apply to him because it doesn’t specifically refer to the president or the presidential oath. He also claims the president is not an “officer of the United States”, as the clause reads .. https://constitution.congress.gov/browse/amendment-14/section-3/ .
In his petition, Trump offers several unconvincing reasons why this is so and it will probably be a difficult argument for his lawyers to sustain. As the Colorado Supreme Court said pointedly in its judgement, “The Constitution refers to the presidency as an ‘office’ 25 times.”
The second issue is whether the Colorado court erred in grounding its judgement on the fact Trump had been guilty of insurrection (based on the House Select Committee report .. https://www.pbs.org/newshour/politics/read-the-final-report-from-the-jan-6-committee ). One of the dissenting justices argued that Trump was entitled to the “due process of law” before being disqualified from the ballot.
So far, Trump has not been found guilty of insurrection, nor is he facing any specific charges of insurrection in the court cases underway.
The respondents seeking to remove Trump from the ballot point to the findings of the trial court in Colorado detailing his actions on 6 January 2021 as the central issue in the case. They claim Trump has failed to show why the trial court was wrong.
In effect, they are asking the Supreme Court to validate the charge that Trump engaged in an insurrection.
The third major issue is whether Section 3 is self-executing,as the Colorado Supreme Court decided. This means the Constitution does not require legislation by Congress in order to disqualify a candidate for office under Section 3.
The US Supreme Court will have to decide whether Congress must legitimise any action under Section 3, or whether Congress merely has the power to invoke the insurrection ban should no other body do so.
How will the court likely respond?
The Supreme Court has a solid six-to-three conservative majority, with three of the conservative justices nominated by Trump. But there isn’t a clear “liberal” or “conservative” position on the Colorado court’s opinion. Liberal and conservative lawyers alike have provided legal rationales for excluding Trump’s candidacy based on the 14th Amendment.
The last time the Supreme Court entangled itself in a presidential election – the Bush v. Gore decision .. https://supreme.justia.com/cases/federal/us/531/98/ .. in 2001 – it was a judicial dog’s breakfast. The ruling was widely seen as a political decision reflecting the partisan preferences of the five conservative justices in the majority.
In a blistering dissenting opinion, Justice John Paul Stevens wrote:
“Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
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The court should be mindful of the public and legal backlash to that decision and its current low level of public approval. The court’s embarrassing ethical problems and unpopular decisions, such as the overturning of Roe v. Wade, have already clouded its legitimacy and reputation.
Whatever its decision, the court risks once again being seen as politically partisan. If it overturns the Colorado decision, it saves Trump’s political ambitions. If it upholds the decision and bars Trump from the ballot, it could trigger protests from Trump supporters, as Trump has already intimated.
The general view among constitutional commentators is the Supreme Court would probably not want to give 50 different states and the District of Columbia the freedom to decide who is qualified or disqualified to be president. This could lead to Trump appearing on the ballot in some states, but not others.
If so, it would need to make the Colorado decision apply to all states, or craft an opinion that overturns the Colorado decision without being seen as overtly pro-Trump. It would have to seek some mid-point between upholding the rule of law (some would argue the Colorado decision does that very effectively) and permitting people to be able to vote for the candidate of their choice.
There’s not much legal precedent to guide the court in resolving the appeal. And the liberal-conservative divide on the court is probably not going to be a reliable predictor of the outcome. How the court settles this dispute is anyone’s guess.
Given the current fragile state of American democracy, the country can ill-afford a repeat of Bush v. Gore.
Image credit: John Minchillo/AP
John Hart, Emeritus Faculty, Australian National University.
This article is republished from The Conversation under a Creative Commons licence. Read the original article.
The fraught debate over whether the 14th Amendment disqualifies Trump, explained
"The bad-faith argument against good-faith accountability for Trump "One well argued legal opinion seemingly poised to get it wrong - if the conservative justices actually believe in originalism, they must disqualify Trump""
The Supreme Court will decide whether Trump can be on the ballot. Would disqualifying him save democracy from a dangerous threat — or imperil it further?
By Andrew Prokopandrew@vox.com Updated Feb 7, 2024, 4:32pm EST
A marcher holds a sign that says, “Not My Dictator” with a picture of Donald Trump in front of Trump International Tower on January 18, 2020. Ira L. Black/Corbis via Getty
Andrew Prokop is a senior politics correspondent at Vox, covering the White House, elections, and political scandals and investigations. He’s worked at Vox since the site’s launch in 2014, and before that, he worked as a research assistant at the New Yorker’s Washington, DC, bureau.
Should Donald Trump even be allowed on the ballot in 2024?
The Colorado Supreme Court and Maine’s Secretary of State both argue that he shouldn’t — saying that, because Trump engaged in “insurrection” in trying to overturn the 2020 election, the US Constitution’s 14th Amendment makes him ineligible for the presidency.
Now the US Supreme Court will weigh in. On Thursday, the justices will hear oral arguments on the matter. Eventually, they’ll decide whether or not Trump will be allowed on ballots this year.
The argument for disqualifying Trump hinges on Section 3 of the 14th Amendment to the US Constitution. Its proponents argue that its plain language disqualifies Trump, who they say engaged in “insurrection or rebellion” against the Constitution, from holding office again.
Some of the country’s most prominent legal experts .. https://www.theatlantic.com/ideas/archive/2023/08/donald-trump-constitutionally-prohibited-presidency/675048/ , as well as some activists and Democratic politicians, have backed the push to disqualify Trump. Yet most in the Democratic Party have kept a wary distance from the effort. And other experts have argued that such actions, intended to save American democracy, might in fact imperil it even further.
To be clear: It seems very unlikely that the Supreme Court actually would make the remarkable move of disqualifying Trump — something that would turn the 2024 election upside down overnight.
Yet the very existence of the effort raises difficult questions about how a democracy should deal with the threat of a candidate like Trump, who retains a good deal of popular support, but who attempted to steal the 2020 election and talks constantly about having his political opponents imprisoned.
A Trump win this year would be deeply dangerous for American democracy. Yet taking away voters’ option to choose him would pose its own perils. It would inevitably be seen as blatant election theft by much of the country — which would trigger responses, both from Republicans in office and Trump supporters on the ground, that could degrade democracy even more severely.
[Insert: i reckon he'll stay on ballots, that's cool by me. It will give us further insight into the American electorate at this time. And it wouldn't take away from the Colorado argument that he shouldn't be there. The big worry about that is Blights and the other concern then that Section 3 would become null and void. That... https://investorshub.advfn.com/boards/read_msg.aspx?message_id=173831804]
How the effort to use the 14th Amendment to disqualify Trump gained steam
“No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath … as an officer of the United States … 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.”
[See also: Excerpt: "Only one person appears to have been barred or ejected from office since Jan. 6 on the basis of the 14th Amendment — a county commissioner from New Mexico named Couy Griffin, who was booted by a state district court judge in September 2022. P - Crucially, however, Griffin had been found guilty of entering a restricted area during the Jan. 6 riot. Trump has not been found guilty of any criminal offense pertaining to Jan. 6 — so far." P - "Importantly, academics and experts across the political spectrum have now concluded that Trump is disqualified under the 14th Amendment. They include prominent conservative legal thinkers like Professors William Baude and Michael Stokes Paulsen, and esteemed retired federal judge J. Michael Luttig, who wrote about the issue with Professor Laurence Tribe." The attempt to bar Trump under the 14th Amendment, explained https://investorshub.advfn.com/boards/read_msg.aspx?message_id=173168043]
This was all warmup to taking on Trump. This August, law professors William Baude and Michael Stokes Paulsen released a 126-page forthcoming law review article on Section 3. They concluded, after a year of studying the topic, that Section 3 sets out a “sweeping” disqualification standard that excludes Trump “and potentially many others” from holding office.
Baude and Paulsen also raised eyebrows for arguing that, per their legal analysis, state election officials should act to take Trump off the ballot now — rather than waiting for Congress or judges to do it. Section 3 is “self-executing,” they argue, so state officials need to obey it.
Democrats have been hesitant to push for Trump’s disqualification, but lawsuits are now moving forward in the courts
With a few exceptions — Rep. Jamie Raskin (D-MD) opined that Trump is disqualified from running — most Democratic politicians have kept a wary distance from this effort.
As much as the party fears and loathes Trump, there is an evident concern that striking him from the ballot would be going too far. The reasons for this may include a commitment to democracy, a fear of the explosive backlash that would follow such a move, a desire to make the effort look less partisan, or even a cynical calculation that Trump would be the easiest Republican to beat .. https://www.politico.com/news/2024/02/07/haley-biden-trump-wisconsin-poll-00140200
So then, the hunt was on to find a judge who will declare Trump ineligible to be president. And attention turned to two “lean Democratic” states where Democrats dominated the Supreme Court.
Citizens for Responsibility and Ethics in Washington (CREW), a longtime progressive advocacy group, filed suit in Colorado. In November, a lower court judge effectively punted, saying Trump had committed “insurrection” but should stay on the primary ballot anyway. The convoluted reason offered .. https://www.reuters.com/legal/colorado-judges-allows-trump-primary-ballot-delays-decision-general-election-2023-11-18/ .. was that Section 3 says an insurrectionist can’t serve as an “officer of the United States” — but the presidency is not an officer of the United States.
In December, though, Colorado’s Supreme Court issued their 4-3 ruling that Trump should in fact be dropped from the primary ballot because he’s ineligible to serve as president. “We do not reach these conclusions lightly,” the justices wrote .. https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf . “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor,and without being swayed by public reaction to the decisions that the law mandates we reach.”
Most Democratic secretaries of state, meanwhile, took no action to disqualify Trump, saying this was a matter for the courts. One exception, was Maine Secretary of State Shenna Bellows (D), who ruled Trump disqualified in December.
Trump appealed both the Colorado and Maine rulings to the US Supreme Court, and that’s where things currently lie.
The case for disqualifying Trump
The legal debates here can be abstruse. They feature attempts to divine the intent of politicians during the 1860s, discussions on how seriously to take an 1869 circuit court opinion by Chief Justice Salmon Chase, and slippery slope hypotheticals about how disqualification could later be abused in different situations.
So let’s zoom out and ask the real question at the heart of all this: Would disqualifying Trump from the ballot in this way be a good idea, or would it be its own sort of affront to democracy?
Ziblatt noted Hans Kelsen, an Austrian legal theorist in the 1930s, who he said “made the case that if you really believe in democracy, you have to be willing to go down on a sinking ship and come back another day.” In Kelsen’s view, the only defensible solution to authoritarians rising in the democratic system is to beat them at the ballot box.
With the rise of the Nazis, that thinking obviously didn’t age well, said Ziblatt. “I think that’s naive,” he said. “This idea that we need to just stand by and let our democracy come under assault and hope everything will work out — it turned out not to work out.”
So the post-World War II German constitution set up a procedure and a legal framework by which certain politicians or parties deemed dangerous to the constitution could be restricted from running for office. “It’s a very complex and highly regulated procedure,” said Ziblatt — involving federal and state offices, a bureaucracy, court approval, and necessary legal steps — because disqualification is such a “potentially dangerous and powerful device.”
Other countries have adopted similar approaches, which are known as “militant democracy” or “defensive democracy.” The idea is to protect democracy by excluding the threats to it from the political scene.
The thinking is: Trump tried to destroy American democracy in 2020. If he’s allowed to try again, there’s good reason to suspect he’ll do more damage. So why not stop him now? Supporters of disqualifying Trump, like Luttig, argue that he disqualified himself. The Constitution says insurrectionists can’t hold office, and we have a duty to uphold the Constitution, they claim .. https://www.newyorker.com/news/q-and-a/the-constitutional-case-for-barring-trump-from-the-presidency.
The case against disqualifying Trump
But the problem with the 14th Amendment option, both Levitsky and Ziblatt told me, is that the US did not establish a consistent procedure or institutional authority for excluding candidates after the Civil War. “We have no agreed-upon institutional mechanism in place, no electoral authority, no judicial body with precedent and practice that all the major political forces agree should be empowered to make this decision,” Levitsky said.
Long-standing institutions and procedures provide credibility; ideally, they help assure the nation that these decisions aren’t ad hoc, arbitrary, and politicized — as they are in many countries. In Latin America, Levitsky says, disqualification is often “badly abused” to exclude candidates the powers that be simply don’t want to win.
In Trump’s case, what would look to some like dutifully standing up for the Constitution would look to many others like an unprecedented intervention by elites into the electoral process, based on a disputed interpretation of a 155-year-old, rarely used provision — with the clear underlying motivation of preventing voters from making a particular person the president.
Both professors blanched at the idea of partisan secretaries of state taking Trump off the ballot on their own. Levitsky called this “deeply problematic,” and Ziblatt said it would be “very fraught and dangerous” and likely to lead to “escalation.”
Pro-Trump secretaries of state would surely respond with their own disqualifications of Democratic candidates in reprisal. Indeed, Trump’s supporters already caused chaos at the Capitol when they wrongly believed the election was being stolen from him, and they’re already disenchanted with American institutions. What if Trump truly was prevented from even running by questionable means? Things can always get worse and more dangerous. Legal commentator Mark Herrmann compared secretaries of state disqualifying Trump to opening Pandora’s Box .. https://abovethelaw.com/2023/08/how-baude-and-paulsen-opened-pandoras-box-is-trump-eligible-for-the-presidency/ .
Given the lack of precedent, the much “healthier path,” Levitsky said, would have been if the Republican Party had managed to self-police by convicting Trump during his second impeachment trial and blocked him from running again. They didn’t — and that’s why we’re in this mess, debating whether democracy can even survive another Trump presidency.
Update, February 7, 4:30 pm ET: This article was originally published on October 7 and has been updated, most recently in advance of Supreme Court oral arguments for this case
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