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  • Writer's pictureAnastasia Boden

Keeping up with the Court, Week of 2/4/24

It’s a special edition of Keeping up with the Court, for an, ahem, special (?) case the Court is hearing this week. As if this term weren’t hot button enough (bumpstocks, Chevron deference, social media platforms, and more!), on Thursday the Court will hear Trump v. Anderson, regarding whether the Fourteenth Amendment disqualifies Donald Trump from the presidency.


Chief Justice Roberts, after this term

Some background: this case is one of dozens of cases that have been brought in more than thirty states arguing that Section 3 of the Fourteenth Amendment, which disqualifies former officials who engage in “insurrection” from taking office again in the future, bars Trump from the presidency given his actions on January 6, 2021.


Section 3 was passed in the wake of the Civil War and was originally intended to disqualify former government officials who fought on the side of the Confederacy from entering office during Reconstruction. But a person doesn’t have to reach Civil War-levels of insurrection™ to be considered an insurrectionist. The question is: what conduct does rise to the level of disqualifying insurrection-ism? And who gets to decide whether it does?


Section 3 been rarely invoked, let alone litigated. And even one of my favorite Supreme Court justices, ardent antislavery advocate Chief Justice Salmon P. Chase, wrote an opinion taking a rather narrow view of the provision in Griffin’s Case. There, Caesar Griffin challenged his criminal conviction on the theory that the judge who had convicted him had served as a legislator in Virginia’s Confederate government and was therefore disqualified from holding judicial office under Section 3.



The man, the myth, the Attorney General of runaway slaves: Salmon P. Chase

Sitting temporarily as a circuit court judge shortly after the Civil War, Justice Chase ruled that Section 3 isn’t self‐​executing (meaning you need further Congressional action or a prior conviction before applying it). He observed that after the Civil War, several southern states had established interim governments out of necessity. If Griffin were right, it would mean that “[n]o sentence, no judgment, no decree, … no official act” issued under those governments “[would be] of the least validity.”


He concluded that it would be “impossible to measure the evils which such a construction would add to the calamities which have already fallen upon the people of these states.” Moreover, excluding a class of individuals from office without trial would violate due process.

In the years following the Civil War, Congress removed the disability for those who had participated on the side of the Confederacy, making the provision a moot point. And since then, Section 3 has been used infrequently. Up until the events of January 6, the provision had not been used to oust someone from office since 1919.


But since January 6, and as it became clear that Trump was a Republican frontrunner for the 2024 presidential election, there have been a flurry of lawsuits. In December, the Colorado Supreme Court became the first court to deem Trump ineligible for the presidency. Shortly after, the United States Supreme Court granted expedited review so that the parties could get a definitive answer on Trump’s eligibility before most primaries take place.


The legal dispute involves a bevy of difficult constitutional questions, including whether Section 3 is “self-executing” (meaning it can be applied by courts without Congress passing implementing legislation); whether disqualification requires a prior court conviction for insurrection; whether Section 3 disqualifies candidates from the ballot (as the Colorado Supreme Court held) or merely from office; whether the provision was even intended to apply to presidents; and what exactly “insurrection” means in the constitutional sense.


After a five‐​day trial in November, a Denver district court concluded that President Trump had engaged in insurrection as used in Section 3 but the provision did not disqualify him because the presidency is not an “office” under the United States, nor is the president an “officer of the United States” who takes “an oath … to support the Constitution of the United States.” That decision had the perverse effect of deeming Section 3 applicable to most government officials, but not the chief executive officer and head of the military, who (out of everyone) we most wouldn’t want to have engaged in a prior insurrection.


In December, the Colorado Supreme Court affirmed in part and reversed in part. It ruled that Section 3 is self‐​executing and Congress need not pass any legislation for it to apply; the issue was not a political question requiring the court to refrain from deciding the case; the district court was wrong to conclude that Section 3 does not apply to the office of the presidency; the district court did not err in concluding that President Trump committed “insurrection” on January 6, 2021; and Trump’s conduct on January 6th was not protected by the First Amendment.


It also deemed Chief Justice Chase’s opinion in Griffin’s Case unpersuasive. According to the court, he was dealing with special circumstances that existed during Reconstruction. And anyway, the case is non‐​binding and has been consistently criticized. There’s no reason why Section 3 should be treated any differently from the other provisions of the Fourteenth Amendment, which are self‐​executing. And while Congress can pass laws to implement Section 3, it need not do so—and any other interpretation would make the Fourteenth Amendment toothless, since Congress could always refuse to pass implementing legislation.

This week the U.S. Supreme Court will decide whether the Colorado Supreme Court’s decision was correct.


The case has amassed a large and large and diverse array of amicus briefs, including states and politicians, former Attorneys General, Vivek Ramaswamy, law professors (including one who sought to secure oral argument time), self-professed “Experts in Democracy,” taxpayer associations, former Capitol police officers present on January 6th, former judges, and random interested individuals.   


A real picture of all of the people who filed as amici

I think the questions involved are all tough ones, and anyone who pretends otherwise is being facetious. I also think it vastly important the Court meaningfully engage with the arguments, show no deference to other branches, not use escape hatches to avoid difficult issues, and outright reject the argument that there should be a presumption against disqualifying Trump because doing so would be “anti-democratic.” Maybe it’s anti-democratic to disqualify a person from office (even if that person was a threat to democracy given any previous insurrections), but the Constitution is fundamentally a limit on democracy. Moreover, Section 3 is a good thing. As the Colfax Massacre illustrates, there is good reason to disqualify people who attempt to disrupt the peaceful transfer of power. Maybe the Colorado Supreme Court decision was a bad idea. Maybe it’s even wrong. But that’s not because it’s anti-democratic.


You can read a little something I wrote about the case here at Cato Institute’s blog; it even includes a rant about the two-party system delivering us two deeply unpopular candidates. But in case you’re tired—so tired—of this debate, how about a quick read about Justice Sonia Sotomayor spilling the tea about her own frustrations at the Court…


[[Update: a massive tree fell in our front yard and knocked out... everything. I am posting this through hotspot connection on my barely functioning and close to dead cell phone. But if I had more battery/service/wifi etc., I'd ask Bing to generate me a picture of "Justice Sotomayor spilling the tea."]]


See you later this week for a recap of this bound-to-be-spicy argument! It will be at least 4 chili peppers on the spicy scale, for sure.

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