There are many reasons why the United States Supreme Court must overturn the Colorado Supreme Court’s decision holding that former President Trump is barred from the presidential ballot under Section 3 of the 14th Amendment, which purports to prohibit a person who has engaged in “insurrection” from holding office.
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In what may turn out to be the most pivotal election case since Bush v. Gore, the U.S. Supreme Court issued a short order on Jan. 5 granting the request by former President Donald Trump asking the court to overturn the Colorado state Supreme Court’s Dec. 19 decision disqualifying him from appearing on the state’s presidential primary ballot. The U.S. Supreme Court moved with unprecedented speed; Trump filed his petition for certiorari on Jan. 3, and the court granted the appeal only two days later.
The case has been put on what, for the Supreme Court, is a “rocket docket.” Trump’s brief and any amicus briefs supporting the former president in Trump v. Anderson have to be filed by Jan. 18; the challengers’ brief and amicus briefs supporting Trump’s removal have to be filed by Jan. 31. Trump’s reply brief is due on Feb. 5, and oral arguments will be held on Feb. 8.
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Several academics — including members of the conservative Federalist Society — are now arguing that Section 3 of the 14th Amendment prohibits Donald Trump from becoming president. They focus on the language that prohibits anyone who “shall have engaged in insurrection or rebellion…or given aid or comfort to the enemies thereof” from holding “any office.” The amendment provides no mechanism for determining whether a candidate falls within this disqualification, though it says that “Congress may by a vote of two-thirds of each house, remove such disability.” Significantly, the text does not authorize Congress — or any other body or individual — to impose the disqualification in the first place.
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