On February 8, 2024, the U.S. Supreme Court will hear oral arguments in Trump v. Anderson—one of the most important constitutional cases in U.S. history and the highest-profile election-related case since Bush v. Gore in 2000. The case is on appeal from the Colorado Supreme Court’s 4-to-3 ruling on December 19, 2023. In that decision, the court ruled that Donald Trump is ineligible to appear on Colorado’s presidential primary ballot under Section 3 of the 14th Amendment, known as the “insurrection clause,” because the court found that he engaged in the insurrection at the U.S. Capitol on January 6, 2021. The insurrection clause 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.
As the Center for American Progress has argued—alongside legal experts from across the ideological spectrum—a plain and fair reading of Section 3, combined with the applicable facts, demonstrates that Trump is constitutionally disqualified from holding future public office. In excluding Trump from the ballot, the Colorado Supreme Court majority wrote:
We do not reach these conclusions lightly. 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.
The three dissenting judges provided various reasons for reaching a different conclusion, with general agreement among them that Colorado’s laws and the lower court judge did not afford Trump sufficient due process.
Trump immediately appealed the decision, asking the U.S. Supreme Court to order that he appear on Colorado’s primary ballot. Trump’s lawyers argued that the state’s decision would unconstitutionally disenfranchise millions of Colorado voters and could become a template to disenfranchise tens of millions more voters nationwide. They also noted that within days of the state’s decision, Maine followed Colorado’s lead, a decision that Trump’s legal team also appealed to the high court.
Justice Thomas’s ties to insurrection require recusal
To ensure a fair and ethically uncompromised decision, Justice Clarence Thomas must recuse himself from Trump v. Anderson due to his wife Ginni Thomas’ reported inextricable ties to Trump’s efforts to overturn the election and foment insurrection. In the lead-up to the January 6 attack on the U.S. Capitol, Ginni Thomas:
- Urged White House Chief of Staff Mark Meadows to take aggressive steps to overturn the 2020 presidential election
- Consulted with John Eastman, the indicted and disgraced lawyer who allegedly participated in the Trump effort to overturn the 2020 election
- Lobbied 29 Arizona lawmakers to reverse Trump’s electoral defeat in the state and choose an alternate slate of so-called electors
- Attended the January 6 rally to “Stop the Steal” immediately preceding the Capitol riots
In addition, seven Democratic members of Congress urged Justice Thomas to disqualify himself from this case in a January 4, 2024, letter. The letter highlights Ginni Thomas’ partiality and financial interests in supporting Trump, documenting an additional cause for recusal under several sections of the Supreme Court’s code of conduct.
This recently adopted Supreme Court code provides that a justice should disqualify themselves in a proceeding in which their “impartiality might reasonably be questioned,” meaning that “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” While the Supreme Court’s new code is nonbinding, 28 U.S.C. Sec. 455, the federal recusal statute, uses nearly identical language and states that disqualification is mandatory.
The U.S. Supreme Court has never decided a case involving the rarely invoked Section 3 of the 14th Amendment, which was added to the Constitution in 1868 as a mechanism to keep Confederates from serving in public office. However, at least eight public officials have been formally adjudicated, including by Congress, to be disqualified and barred from public office under the insurrection clause. The New Mexico Supreme Court also recently upheld a lower court’s decision to remove and bar a January 6 rioter from holding public office in that state, a decision that was not appealed to the U.S. Supreme Court.
Potential key arguments in the case
The fundamental questions in Trump v. Anderson include whether the insurrection clause applies to presidents; whether Trump violated the clause; and what the proper mechanisms are for disqualifying a presidential candidate under such circumstances. Although it would be an unprecedented step for the U.S. Supreme Court to constitutionally disqualify someone from the presidential ballot, Trump’s key role in the January 6 insurrection—which was a culmination of his multipronged strategy to overturn the presidential election—was itself unprecedented and dangerous for U.S. democracy. It is little wonder that conservative former federal appellate court Judge J. Michael Luttig as well as prominent members of the conservative Federalist Society, among many others, have persuasively argued that the insurrection clause is applicable in the current case.
The parties in this case are making multiple arguments, many of which are matters of first impression. The Colorado Supreme Court majority opinion presents a compelling roadmap on how to correctly decide the most important issues. If the U.S. Supreme Court follows the plain constitutional text—a method that conservative justices often use as a bedrock principle—they should uphold the reasoned decision of the Colorado Supreme Court.
Some of the most salient issues, many of which were addressed by the Colorado Supreme Court and could govern the U.S. Supreme Court’s decision, include:
- The scope of the insurrection and Trump’s involvement: The definition of “insurrection” was cogently determined by the Colorado Supreme Court in a way that comports with history and common sense. The factual record establishes that Trump engaged in the January 6 insurrection, or at the very least, gave aid and comfort to it, as the nation witnessed and as the House of Representatives’ bipartisan January select committee and 2021 impeachment proceedings Moreover, even though this was not a criminal proceeding, Trump received due process during a weeklong hearing in the Colorado trial court, where copious witnesses and evidence were presented.
- The application to presidents: Compelling historical evidence shows that Congress intended the insurrection clause to apply to presidents and to the oath of office that presidents take, even though the Constitution does not explicitly state such.
- The First Amendment: Trump’s First Amendment free speech rights were not violated by the Colorado Supreme Court’s decision. As that court properly determined, Trump’s language on January 6 was clearly directed to incite or produce imminent lawless action and was likely to incite or produce such action; this is the required standard in the controlling U.S. Supreme Court precedent Brandenburg v. Ohio.
- Federal legislation, criminal convictions, and impeachment and removal: Nothing in the Constitution or relevant history requires that Congress pass legislation implementing the insurrection clause, nor is a criminal conviction or impeachment and removal from office required to disqualify persons under the insurrection clause. Rather, the only affirmative requirement set forth in Section 3 of the 14th Amendment requires Congress to act by a supermajority to remove the disqualification from those who have engaged in insurrection.
- Scope and timing of state action: The insurrection clause not only disqualifies candidates from being sworn into public office, but states may properly bar candidates from the ballot during the election cycle, as Colorado’s high court determined. The state’s actions were permissible even considering that the Constitution’s electors clause (Article II, Section 1, Clause 2) vests each state legislature with the authority to determine the manner of how it chooses its presidential electors.
Conclusion
In a strong and enduring democracy, no one can be above the law, not even a former president. A plain and honest reading of Section 3 of the 14th Amendment applied to the facts and with an eye toward its original intent should lead the Supreme Court to only one logical conclusion: that the insurrection clause bars Donald Trump from the office of the presidency. Trump must be held accountable for his central role in the January 6 insurrection, including via Section 3 of the 14th Amendment. This would be true of anyone who engaged in similar acts irrespective of political party or ideological affiliation.
If the U.S. Supreme Court reverses the Colorado Supreme Court decision in Trump v. Anderson, its decision could shake the United States’ democratic foundation in the rule of law and set a dangerous precedent. For the good of democracy and our system of free and fair elections, the U.S. Supreme Court should render a timely decision that provides definitive guidance to all states about Trump’s eligibility to appear on their ballots. Without a clear decision, U.S. democracy risks a turbulent and fraught election cycle, particularly during a time of rising political extremism and violence.