- The Supreme Court will hear arguments on the Colorado Supreme Court's decision to leave Donald Trump off the 2024 presidential ballot.
- Law experts say there is little precedent to lean on, but plenty of context.
- Hearings begin February 8th, less than a month before Colorado's presidential primary.
The Supreme Court is called “The High Court” for a reason. Once a case makes it there— it’s decided.
That’s why its choice to hear arguments on a case that would ban Donald Trump from the 2024 presidential ballot in Colorado will have such a huge impact.
The Colorado Supreme Court says the former president should be disqualified based on Section Three of the 14th Amendment to the U.S. Constitution. That section 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.”
In short, if you held office and participated in an insurrection, or supported those who did, you can’t hold public office again.
But it’s not that simple. There’s a lot left up to interpretation.
One of the points up for argument: is the president considered “an officer of the United States” or not? We know the president is not any of the other titles cited in the section— why wouldn’t the authors be explicit? Would they not be wary of the president’s power, considering they’re less than a century removed from fighting so hard to get out from under a monarchy? Of course, all of these questions are partially why lawyers have jobs.
Another point some argue: do the events of January 6th, 2021 qualify as an insurrection? While it was shocking for many modern-day Americans, congressmen from the 1860s may not have been so surprised to see it.
Dr. Michele Goodwin is the O’Neill Professor of Constitutional Law and Global Health Policy at Georgetown. She says Section Three isn’t a “random piece of law” that was thrown into the 14th Amendment, but rather, a forecast from Congress at the time.
“Here's the relevance of understanding its historical foundations: it's because members of Congress personally experienced the violence themselves and the threats themselves,” Goodwin said. “This is why it's embedded there. It's not abstract.”
Goodwin points to what’s been named the “Caning of Charles Sumner” – when a representative from South Carolina beat a Senator nearly to death inside the U.S. Capitol.
Temperatures and tensions were both high— it was 90 degrees inside the Old Senate Chamber in May of 1856. Senator Sumner, a staunch abolitionist of Massachusetts, gave a speech where he called out other members of Congress by name for their hypocrisy on slavery. One of those was Senator Andrew Butler of South Carolina. Butler wasn’t there that day, but his relative worked down the hall in the House of Representatives. In the days following his speech, Representative Preston Brooks stormed into the Senate Chamber and beat Sumner with a metal cane… bringing him within inches of death.
“So it was deeply personal. It's also important to understand that they understood it not just in terms of physical violence against themselves, they understood it in a different way,” Goodwin said of members of Congress in that era.
“And what they experienced threats about were the things that today would be telling for us. They experienced threats because they said Black people should not be enslaved. Because they said women shouldn't be forced into reproductive servitude.”
Goodwin says even in the time of the Civil War, a Confederate flag never made it to the halls of the Capitol - but it did on January 6th, 2021. She says members of Congress who wrote the 14th Amendment were deeply concerned individuals would try to defeat and undermine the representational government that we have and undermine the union.
After the beating on the Senate floor, it would be another ten years, and one Civil War later, that members of Congress would pass the three “Reconstruction Amendments” that set the United States on a new path after a violent few years… the 13th, 14th, and 15th Amendments.
So… What does this have to do with you, a voter in the United States, in the year 2024?
Typically, the Supreme Court would lean on precedent, but the only real precedent we have here is in 2022 when a Commissioner in New Mexico was removed from his position after he was found guilty of trespassing the U.S. Capitol on January 6th, 2021. That’s hardly enough precedent for a case this size, so we lean on context.
Law Professor Danny Karon has little doubt the Supreme Court will overturn the Colorado Supreme Court’s decision and Trump will be on the ballot.
It was President Trump who nominated one-third percent of the current court… Justices Gorsuch, Barrett, and Kavanaugh.
“I think that when he put these three folks on the court, he didn't know how he would need them, but he knew that he would need them,” Karon said. “And I think it's gonna come in real handy when you combine their votes with Roberts, Thomas, and Alito, there's your six.”
Several other states have made an effort to remove Trump from the ballot.
Colorado and Maine are the only two who made it official… But a number of states started the process, with many dismissing the cases altogether.
With very little precedent and a whole lot of pressure on its shoulders, the Supreme Court is under a microscope. But, as Karon pointed out, this bench of justices has already proven to throw precedent to the wind.
“I mean, they undid Roe v. Wade and the precedent said, hey, listen, that right's protected. And they decided to go the other way. Why can they do that? Because they're the Supreme Court. And nobody's gonna tell them they can't. There's no higher court to appeal to.”
Hearings will begin in the Supreme Court on February 8th - less than a month before the Presidential Primary in Colorado.
“The crime against Kansas.” U.S. Senate: “The Crime Against Kansas.”(2023, September 8).
Gamio, L., Smith, M., & Bogel-burroughs, N. (2024, January 2).Tracking efforts to remove Trump from the 2024 ballot. The New York Times.
23-719 TRUMP, DONALD J. V. ANDERSON, NORMA, ET AL. (UNITED STATES SUPREME COURT January 5, 2024).