Donald Trump’s ballot eligibility reaches the Supreme Court

Rarely has a scholarly article in a law journal achieved such reach. In this instance, it was written for the University of Pennsylvania Law Review by two conservative academics, who argued that the answer to the question of what could stop Donald Trump from returning to the the White House had always been there, tucked away in the third clause of the Fourteenth Amendment to the U.S. Constitution. That little-quoted passage would, they claimed, prevent the former president from being included on the ballot by virtue of his alleged responsibility for the assault on the Capitol on January 6, 2021. The argument materialized in dozens of lawsuits across the country, which crystallized into bans in two states: Colorado and Maine. On February 8, the debate on whether Trump is authorized to run in the November elections will reach the Supreme Court, whose nine justices have been summoned to hear oral arguments for and against that scientific article in what is already one of the cases of greatest political significance (Donald J. Trump v. Norma Anderson et al) in recent U.S. history.

It promises to be a morning of discussion about law, but also about history. The Fourteenth Amendment is one of the most influential because it guaranteed, after the abolition of slavery, the equality of all citizens before the law. It was also used to prohibit those who had participated in an insurrection from running for public office again. It was passed in 1868, three years after the end of the Civil War (1861-1865), and was intended to ensure that the secessionists could not attack the Union from within. Beyond those cases, the third clause has been used on very few occasions, and most recently more than a century ago.

During the hearing, echoes of the Supreme Court’s own history will also resound. The most obvious precedent is the Bush v. Gore decision, which settled the Florida recount dispute in the 2000 election and ultimately handed the presidency to George W. Bush. Oral arguments are expected to last about 80 minutes Thursday and no immediate decision is predicted to come from them, but it will provide an impression of where each of the justices’ votes will go. The current composition of the Supreme Court is six conservatives and three liberals. In his four years in the White House, Trump achieved a rare feat: sneaking three justices of his own stripe onto the highest court in the land.

The ball has been in the court of these nine judges since late December, but now speed is of the essence: it is crucial for a ruling to be made public before March 5, Super Tuesday, when 16 states will vote in the presidential primaries, including California and Texas, awarding more than a third of the delegates who will choose the candidate at the Republican convention in July. It will be imperative at that point to have answered the question as to whether Trump, the frontrunner, can appear on the ballot. One of the states voting on March 5 is Colorado, where a judge concluded that the former president participated in an insurrection, but did not disqualify him on the grounds that the constitutional text does not refer to the office of the president. The Colorado Supreme Court later reversed that ruling. There are also ballot access proceedings underway in Maine.

The text submitted for discussion reads: “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.” The amendment adds that only a two-thirds vote of each house of Congress can override this prohibition.

Legal debate with political consequences

Trump’s lawyers have seized on the amendment’s confusing formulation to claim that it cannot be applied to the presidency. They also claim that what Trump did on January 6, 2021 does not fall within the definition of insurrection, and that the Fourteenth Amendment cannot be applied without the agreement of Congress. Analysts expect the Supreme Court to resolve the issue along strictly legal lines, without entering into questions of political judgment such as whether what unfolded during the assault — when a mob harangued by Trump during a rally in Washington marched towards the seat of American democracy to interrupt the process of the transfer of power to Joe Biden — can be considered a failed coup attempt.

The Supreme Court also faces a new test of its legitimacy Thursday. Its reputation among the citizenry is at an all-time low, and in recent months it has been in the spotlight due to accusations of corruption against justices who are appointed for life and practically untouchable within the U.S. system. Conservative justice Clarence Thomas has come under fire for having received undisclosed expensive gifts, including international travel, from a powerful Republican donor.

Left-leaning media have called for Thomas to recuse himself from cases involving Trump’s responsibility for the Capitol attack, in light of evidence that his wife Ginni Thomas — a lobbyist and ultra-conservative activist — was once involved in the former president’s campaign to denounce the alleged electoral fraud of 2020. She also attended the January 6 Stop the Steal rally before the Capitol riot and told the House committee investigating the assault in 2022 that she was still convinced Democrats stole the 2020 election.

The Supreme Court hearing comes just two days after Trump’s legal team was dealt a major blow by the decision of the three Washington Court of Appeals judges who unanimously ruled he is not legally immune from prosecution for acts committed during his presidency. The ruling rejected an appeal by the former president against a decision to the same effect by U.S. District Judge Tanya Chutkan, who is presiding over the case against the Republican for trying to alter the results of the 2020 elections and for his responsibility in the assault on the Capitol. In this case, once again, the Supreme Court will have the final word.

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