By Charles Dervarics
When it intervened in 2000 to tip the presidential contest to George W. Bush over Al Gore, the U.S. Supreme Court left an indelible mark on presidential politics. Now the high court has an opportunity to match that standard when it takes up an obscure amendment to the U.S. Constitution with enormous implications for former President Trump.
At issue for Trump is a post-Civil War addition to the Constitution designed at the time to bar former Confederates from holding office due to their participation in an insurrection against the United States. In December, the Colorado Supreme Court ruled that the “insurrection clause” of the 14th Amendment bars Trump from the state’s primary ballot, citing his involvement in the January 6, 2021 storming of the U.S. Capitol to stop Congress from certifying the results of the 2020 presidential election.
Trump is appealing the Colorado decision to the nation’s highest court, which has agreed to take up arguments in the case, formally called Trump v. Anderson, on Feb. 8.
Colorado also is just one of several flashpoints in the debate on whether the former president is ineligible for election. Maine has removed the former president from its ballot, and more than a dozen states also are considering similar challenges.
At a recent rally in Iowa, Trump decried these actions. “I just hope we get fair treatment. Because if we don’t, our country’s in big, big trouble. Does everybody understand what I’m saying?”
The 14th Amendment states that no person shall serve as a U.S. senator, representative or presidential elector if they took an oath to uphold the Constitution only to then participate in an insurrection or rebellion against it. While the amendment does not specifically name the president, it suggests a broad approach by including “an officer of the United States” as someone subject to the amendment.
Among other issues, the justices will be asked to determine whether the president is formally covered by the amendment and if a state itself can enforce this provision.
In their own legal filings, lawyers for Trump argue that the events of January 6, 2021 were “not insurrection,” noting that the U.S. “has a long history of political protests that have turned violent.”
For example, the brief claims, violent protesters in summer 2020 in Portland, Oregon, “repeatedly assaulted federal officers and set fire to the courthouse, all in support of a purposed political agenda opposed to the authority of the United States.”
Moreover, Trump’s lawyers say, the former president has not been convicted of insurrection and did not encourage supporters to enter the Capitol.
But Maine’s secretary of state, who wants to remove Trump from that state’s ballot, maintained that the former president actively supported insurrection.
“Mr. Trump’s occasional requests that rioters be peaceful and support law enforcement do not immunize his actions,” Shenna Bellows said. “A brief call to obey the law does not erase conduct over the course of months … The weight of the evidence makes clear that Mr. Trump was aware of the tinder laid by his multi-month effort to delegitimize a democratic election, and then chose to light a match.”
Trump critics are also asking Justice Clarence Thomas to recuse himself from the case because of his wife’s involvement in efforts to question the 2020 election. Thomas’ refusal to recuse himself “raises questions about the integrity of the judicial process and the influence of political bias,” according to Christina Harvey, executive director of Stand Up America.
The former president appointed three members to the Supreme Court during his term in office, and the justices have built a solidly conservative record since that time.
Once the high court hears oral arguments, a ruling may come quickly as the Colorado presidential primary is scheduled for March 5.