On Feb. 8, the Supreme Court will hear oral arguments in Donald J. Trump v. Norma Anderson et al, a case that could swing a presidential election in a way not seen since Bush v. Gore a quarter-century earlier.
The crux of Trump v. Anderson boils down to this: Should a former commander in chief be disqualified from seeking the presidency again if he engaged in insurrection?
The answer to that question — and even the premise of the question itself — has sparked furious debates among lawyers, law professors and historians. Many of those disputes revolve around two contested subjects: the definition of insurrection, and the true meaning of the 14th Amendment to the U.S. Constitution.
That amendment — passed in 1866 and ratified in 1868 — is probably best known for its first section, which stated that all Americans should receive equal protection under the law. But the amendment’s third section took up a different issue: what to do with former members of the Confederacy who had “engaged in insurrection” — or had given “aid or comfort” to insurrectionists — and now wanted to hold elected office in the government they had fought against.
More than 150 years later, a constitutional fix crafted with Jefferson Davis in mind is being used to argue that former President Trump is ineligible to be president again. There is no clear precedent in the case. The text of the 14th Amendment’s third section is confusing and vague. The range of potential decisions by the high court is vast. But whatever the court decides, the ruling will have enormous implications for American democracy.
How Did We Get Here?
Last September, six Colorado voters — four registered Republicans and two independents — filed a lawsuit that said Trump was disqualified from appearing on Colorado’s 2024 Republican primary ballot because he’d engaged in insurrection on Jan. 6, 2021, and thus, under Section 3 of the 14th Amendment, could no longer seek the presidency.
After months of legal wrangling, the case went before the Colorado Supreme Court. A majority of the panel, in a 4-3 decision, stunned the country by concluding that Trump had engaged in insurrection, that his fiery rhetoric was not protected speech under the First Amendment and that Trump could not appear on the ballot in Colorado’s primary. Shortly afterward, Maine Secretary of State Shenna Bellows issued an order that piggybacked on the Colorado Supreme Court’s decision and ruled that Trump would not appear on the primary ballot in Maine either. Meanwhile, several other states, including California, have determined that he can remain a candidate.
Soon afterward, lawyers representing Trump formally asked the U.S. Supreme Court to consider whether the Colorado court had mistakenly excluded Trump from the ballot. On Jan. 5, the high court agreed to hear the case on a sped-up timetable.
The Colorado and Maine decisions have ignited a debate about the true meaning of the 14th Amendment. They have also put the U.S. Supreme Court in the position of potentially deciding whether Trump can remain on the ballot across the country in the 2024 election.
The 14th Amendment bans insurrectionists from serving as a “Senator or Representatives in Congress,” “electors of President and Vice President,” or in “any office, civil or military, under the United States, or under any State.” There is no direct mention of the presidency. It applies to anyone who took the oath of office to defend the Constitution, including anyone who was “an officer of the United States.” One camp of legal scholars argues that it would be nonsensical and inconsistent with the intent of those who drafted the amendment to say that it excluded the presidency.
Under that logic, the amendment would have banned former Confederate President Davis from running for county clerk or state representative after the Civil War — but not for commander in chief of the country that Davis had tried to overthrow. As one respected scholar, Indiana University law professor Gerard Magliocca, testified in the Colorado case, “It would have been odd to say that people who had broken their oath to the Constitution by engaging in insurrection were ineligible to every office in the land except the highest one.”
Other scholars say the omission of the presidency from the 14th Amendment is so glaring that it can be read as an intentional decision. “It’s very strange to name the Senate and House but not the president,” said Derek Muller, a Notre Dame law professor, characterizing this position. “If you list a bunch of things and you omit one thing, you probably did it on purpose.”
What the U.S. Supreme Court Could Do
When the U.S. Supreme Court agrees to hear a case, the justices sometimes narrow the set of questions to be argued, drilling down on what they see as the core issues. In Trump v. Anderson, the court has not done that, at least not yet. There are as many as seven discrete questions that the court could consider before issuing a ruling.
Those questions include: Did Trump engage in insurrection? Does Colorado law allow for the removal of a candidate from the ballot? Does the 14th Amendment cover presidents?
It’s possible, of course, that the high court affirms the Colorado Supreme Court’s decision, effectively disqualifying Trump from holding the presidency again. Many legal scholars and longtime court watchers say that is the least likely outcome given the consequences such a decision would have for American democracy.
It’s more likely, experts say, that a majority of the justices settle on a narrower decision that results in Trump remaining on the ballot.
Five or more justices could find that the 14th Amendment does not, in fact, cover the presidency. They could say that Colorado law does not give the secretary of state the right to remove Trump from the ballot. They could say the state court’s finding about the meaning of insurrection is incorrect and send the case back to Colorado for more fact-gathering.
Another competing camp of lawyers and law scholars has argued that Congress has a role to play — namely, that it must first pass legislation authorizing the disqualification of a candidate under the 14th Amendment before a court or a secretary of state can remove that candidate, as Colorado and Maine have done. These scholars point to Section 5 of the 14th Amendment, which states that Congress has the authority to enforce the language of the amendment.
“This could be read as a requirement that there be some kind of congressional action before the section goes into effect,” said Samuel Issacharoff, a New York University law professor who has written about the 14th Amendment. Under this theory, Issacharoff said, Congress would need to pass a bill approving the procedure for Trump’s removal from the ballot before a ban could go into effect — a highly unlikely possibility with a Republican majority in the House of Representatives.
But the arguments around Trump and the 14th Amendment don’t break along ideological or partisan lines. Legal scholars have argued that applying the legal philosophies of “originalism” and “textualism” to the 14th Amendment leads to the conclusion that Trump should be disqualified from seeking the presidency again. They especially point to the “aid or comfort” language to argue that Section 3 applies to Trump’s actions on Jan. 6, 2021. All six of the high court’s conservative justices have said that they adhere to such judicial philosophies.
David French, a conservative evangelical lawyer, New York Times columnist and Trump critic, recently wrote that the strongest arguments for applying Section 3 to Trump are “all text and history, the essence of originalism,” adding that “it would not be a stretch for a conservative Supreme Court to apply Section 3 to Trump.”
A Risk of “Catastrophic Political Instability”
What legal scholars do agree on is the dizzying number of possible rulings the Supreme Court could issue given the many questions at play. “If you drew a decision tree with little branches, there are so many permutations here,” said UCLA law professor Rick Hasen.
Most alarming to scholars such as Hasen is the possibility that the Supreme Court rules in a way that doesn’t settle the question of Trump’s eligibility but instead punts that decision to a later date.
The court could say that the 14th Amendment shouldn’t be applied to party primaries, only general elections. If that were to happen, then the same plaintiffs could file a nearly identical lawsuit later this year if and when Trump secures the Republican presidential nomination, arguing that he shouldn’t appear on the November ballot. That would mean the Supreme Court could in theory rehear the case and decide his eligibility after tens of millions of people had voted for Trump in dozens of primaries and caucuses.
“It risks disenfranchisement and chaos,” Hasen said. “Disenfranchisement for all of those people who would vote for a candidate ultimately found to be disqualified, and chaos especially if it gets punted to the political branches.”
In an amicus brief in the Trump v. Anderson case, Hasen, Ohio State law professor Ned Foley and longtime Republican election lawyer Ben Ginsberg lay out a chilling scenario in which the court deferred to Congress on the question of Trump’s eligibility. If Trump were to win the presidential election and Democrats were to win control of Congress, then those Democratic lawmakers could, in theory, vote to disqualify Trump in January 2025 if they believe he engaged in insurrection, as many Democrats have said they do.
“What would it mean for a Democratic Congress to say, ‘Donald Trump can’t serve even though he won?’” Hasen said. “To me, that’s a recipe for potential political violence.”