When they don their black robes and enter the chambers of the United States Supreme Court tomorrow, the court’s nine justices will be entering uncharted territory.
For the first time in its history, the Supreme Court is asked to determine whether the Constitution disqualifies a presidential candidate. Specifically, Thursday’s case asks whether a Civil War-era constitutional provision excludes Donald Trump from the ballot because of his actions during and around the Jan. 6 attack on the U.S. Capitol.
The case of Trump v. Anderson echoes several of the high court’s most important decisions. The trial raises new and complex legal questions, it concerns a pressing and controversial national issue, and it will have immediate and far-reaching consequences for the country. Whatever the Supreme Court decides, it will anger a significant portion of the electorate.
The current High Court is no stranger to consequential decisions. In the past two years alone, the court has issued landmark rulings in cases involving abortion access, gun rights and affirmative action.
Although these issues have been widely litigated for decades, the justices will approach Thursday’s argument with very little experience judging this section of the Constitution. It will also be the first time they hear a case directly related to the deadly Jan. 6, 2021, riots at the Capitol and the fallout from Mr. Trump’s continued false claims that the 2020 presidential election was stolen.
“Most of the time, judges know what they think about a particular case, and they have a pretty good idea of what other people think” before the oral arguments, explains Gerard Magliocca, professor at the law faculty of the Indiana University.
“This time, neither will be true,” he adds. “They’re all going to go in there to find out what other people think, and that, in turn, will influence what they think, much more than in a normal argument.”
What does section 3 say?
Last month, the Colorado Supreme Court ruled that Section 3 of the 14th Amendment bars Mr. Trump from running in the state’s primary election. The 19th-century provision, ratified as ex-Confederates sought to return to government after the Civil War, prohibits anyone “engaging in insurrection” against the United States from holding public office. Congress can remove this disqualification with a two-thirds vote, under Section 3, and has done so for Civil War veterans in a few cases.
The provision has been used sparingly since the 1870s, but the Jan. 6 attack and Mr. Trump’s 2024 campaign have brought Section 3 out of obscurity. From last summer, legal groups and campaign coalitions have filed lawsuits in at least a half-dozen states, arguing that Section 3 disqualifies Mr. Trump. Most of those lawsuits were unsuccessful, but in late December the Colorado Supreme Court ruled 4-3 that he was ineligible to run in the state’s primary.
The paucity of Section 3 cases over the centuries “indicates that there haven’t been many cases of insurrection against the United States,” says Manisha Sinha, a professor of American history at the University. of Connecticut, which joined an amicus brief from historians arguing that Mr. Trump is disqualified.
Nonetheless, the 14th Amendment “is the foundation of modern democracy in the United States,” she adds. Although Section 3 is rarely used, “it is not something we can choose to obey or implement.”
It’s also not something to do lightly, according to Will Baude, a professor at the University of Chicago Law School. He helped spark the national debate over Article 3 last summer when he co-authored an in-depth book law review article arguing that Section 3 disqualifies Mr. Trump.
“Disqualifying people from voting is a big deal,” Professor Baude said this week on the University of Chicago’s “Big Brains” show. podcast.
“In a healthy democracy, you don’t need these kinds of exclusionary provisions,” he added. “Unfortunately, Article 3 was passed out of concern that we might not always have a perfectly healthy democracy.”
For his part, Mr. Trump says that American democracy is healthy – but that it is threatened by this affair. On the other hand, critics say nothing could be less democratic than allowing someone who incited his supporters to violently block Congress from certifying his electoral defeat to occupy the most powerful office in the country.
Mr. Trump’s lawyers opened a recent filing citing his margins of victory in the 2024 Iowa caucuses and the New Hampshire primary. “The American people – not the courts or election officials – should choose the next president of the United States,” they added.
In an amicus brief, 179 members of Congress say the Colorado Supreme Court’s decision “gives a green light to partisan state officials to disqualify their opponents” in the future and “interfere with the ordinary democratic process “.
But “democracy” is almost irrelevant in an Article 3 case, or any constitutional law case, experts say. The founding fathers feared both the monarch and mob rule. This is precisely why the supreme law of the land is not how the majority votes but what the Constitution says. The Supreme Court will have to determine whether this article of the Constitution applies in this case.
“The Constitution limits us to a particular implementation of democracy,” says Vikram Amar, a professor at the University of California Davis School of Law. “The $64,000 question is what the Constitution means one way or the other.”
Can the court act as one?
Thus, the oral argument will likely focus on a set of rarely debated constitutional issues. Is section 3 “self-executing”? The clause even run for president? Mr. Trump’s actions around January 6 constitute “participation in the insurrection”?
Legal scholars do not agree on all these questions. However, given the seriousness of the case, scholars on both sides agree that the Supreme Court must make a decision – that is, a definitive answer on whether Mr. Trump is disqualified under Article 3 – on the merits as quickly as possible.
It would also be useful if it were as unanimous as possible.
The Supreme Court has a tradition of deciding these rare and momentous cases unanimously. Perhaps most famously, the court outlawed racial segregation in public schools with a unanimous decision in Brown v. Board of Education. Two decades later, a unanimous court ordered Richard Nixon to turn over documents related to the Watergate investigation, precipitating his resignation.
On the other end of the spectrum is Bush v. Gore, which divides the court along ideological lines. In a case that effectively decided the 2000 election in George W. Bush’s favor, the high court — in a per curiam order issued the day after oral argument — halted a recount in Florida.
The judges “will really want to work hard to try to find as much consensus as possible,” says Professor Amar.
“We don’t want a case to be decided on partisan grounds. We also do not want the matter to be handled to such an extent that the result of the work is not good,” he adds.
In another landmark case, a federal appeals court in Washington ruled unanimously on Tuesday that Mr. Trump did not have immunity from criminal prosecution for his actions around January 6. It took 28 days from oral arguments for the D.C. Circuit Court of Appeals to write. a 57-page ruling that “for purposes of this criminal case, former President Trump became a Trump citizen, with all the defenses of any other criminal defendant.”
As the Supreme Court justices do in Trump v. Anderson, the appeals court judges were operating in uncharted territory: No other former president has ever been charged with a crime. Mr. Trump faces 91. His lawyers have until Monday to appeal this case to the Supreme Court. Otherwise, the proceedings before the court of first instance will resume immediately.
However, this was only a three-judge panel, not the full Supreme Court. And although the justices are under pressure to rule quickly, with the primaries in full swing, they also find themselves in uncharted legal territory.
Ultimately, legal observers say, a decision before the term ends in June is certain. But a decision may not be made until half the country has voted in the primaries and Republicans have chosen their presidential nominee.
“We thought it would come out before Super Tuesday” at the beginning of March, explains Professor Magliocca. “I don’t know if they will be able to do it by then.
“This is an opinion that will be read much more widely than usual,” he adds. “What they say could be just as important as what they do.” »