The case of Trump v. Anderson argued before the Supreme Court on Feb. 8, 2024, concerns Trump’s eligibility to be on the Colorado primary ballot. The Colorado Supreme Court held that the Section disqualifies anyone who, having sworn to support the Constitution, has “engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.”
Most of the Supreme Court justices seemed inclined at oral argument to overrule the Colorado Supreme Court primarily on grounds that suggest their unwillingness to do their job. Many cases, like this one, present novel questions of social importance. This is why they are heard by the Court on appeal by those who lost at the lower courts. The Court then makes a ruling that renders the law clearer than it was before so that people can guide their conduct as the law requires.
For example, in Kyllo v. United States (2001) the Court considered the prosecution of someone who was illegally growing marijuana in his house. Without a warrant, law enforcement acting on a tip used a heat sensing device on public land to find heat patterns in Kyllo’s house that may have resulted from lamps for plants. With this information it obtained a search warrant and found marijuana plants. The Court ruled that this use of heat-detection technology requires a warrant up front, according to the 4th Amendment, because it constitutes a search.
Trump v. Anderson also involves a new issue. As I noted in a blog post last August 25, legal scholars William Baude and Michael Stokes Paulsen argue, as did Colorado’s Supreme Court, that Section 3 of the 14th Amendment applies to Trump and disqualifies him from further office. But the Supreme Court seems unwilling to take this step.
At oral argument, Justice Kagan wondered “why a single state should decide who gets to be president of the United States.” Jason C. Murray, arguing for the State of Colorado, replied,
“ultimately, it’s this Court that’s going to decide that question of federal constitutional eligibility and settle the issue for the nation. And, certainly, it’s not unusual that questions of national importance come up through different states.” In fact, this is always the case when a state law, rule, or judicial decision reaches the Supreme Court. The Court decides for the whole country.
The justices were concerned also with the possibility that if Trump is denied presence on the primary ballot in Colorado, states where Republicans prevail will try to remove Democrats from primary ballots on the same grounds. Chief Justice Roberts said: “Insurrection is a broad, broad term, and if there’s some debate about it, I suppose that will go into the decision and then, eventually, what, we would be deciding whether it was an insurrection when one president did something as opposed to when somebody else did something else? We’d have to develop rules for what constitutes an insurrection.” Mr. Murray replied: “Yes, Your Honor, just like this Court interprets other constitutional provisions….”
In fact, that’s their job. “Search” is a broad term, but when new heat-sensing technology was developed the Court didn’t throw up its hands and say different people have different views so we can’t decide. They recognized that precisely because different people have different views we have a Supreme Court whose role is to impose its view on the whole country.
Baude and Paulson propose a definition of “insurrection” based on old dictionaries as well as journalistic, political, and legal uses of the term in 1868 when the 14th Amendment was ratified. They conclude that “insurrection” is “forcible resistance to the authority of government to execute the laws in at least some significant respect.” It’s not just breaking the law, but forcible resistance predicated on denial of the authority of the government to make and enforce the laws in question. Whether this definition or another, it’s the Court’s job to establish some definition in its interpretation of Section 3.
Section 3 also disqualifies from political office all of those who have previously sworn allegiance to the Constitution and then have “given aid or comfort to the enemies thereof.” Trump certainly aided the insurrection by failing to intervene for more than 3 hours when he had sworn an oath to uphold the law. He gave comfort to the insurrectionists by praising them while telling them to go home. He continues to do so by referring to those in prison for insurrection as “hostages.”
Roberts is correct that both political parties may seize on the issue of disqualification to impair the electoral chances of their opponents. But this is why the Court must clarify the relevant legal terms, just as they have for “freedom of speech,” “free exercise of religion,” the “taking” of private property, and the meaning of “search.” Justices – Do your job!
留言