Authors: Dahlia Lithwick and Mark Joseph Stern, SLATE

The U.S. Supreme Court agreed to hear a case challenging Donald Trump’s eligibility for president, teeing up final resolution of a constitutional dispute that could knock Trump off the ballot in multiple states. The justices will review, on an expedited basis, the December ruling by the Colorado Supreme Court finding the former president disqualified under the 14th Amendment from returning to office due to his participation in an “insurrection” on Jan. 6. The justices will hear oral arguments in the historic case on Feb. 8. To reach a decision, the court will have to weigh strong legal arguments for disqualification against the daunting real-world impact of intervening decisively against Trump, to the fury of his would-be voters. The institution, as constituted today, is poorly suited to undertake such a delicate balancing act with sky-high stakes. But it no longer has a choice.

The battle over Trump’s eligibility is rooted in Section 3 of the 14th Amendment, which the nation ratified in the wake of the Civil War. In an effort to prevent former U.S. officeholders who had fomented and fought that war on behalf of the Confederacy from returning to office, this section bars citizens from holding “any office, civil or military,” if they previously took an oath to support the Constitution and then “engaged in insurrection” against the United States. In Colorado, a group of voters filed a lawsuit arguing that Trump incited violence at the Capitol on Jan. 6, participating in an “insurrection” that disqualifies him from returning to the White House. The state’s highest court agreed on Dec. 19, barring Trump from the primary ballot—but placing its decision on hold so he could seek review at Supreme Court of the United States. In the meantime, Maine Secretary of State Shenna Bellows, a Democrat, reached an identical conclusion last week and kicked Trump off the ballot there; the former president is now appealing her decision, which is on hold, in the state courts. Bellows’ decision proved that the Colorado ruling was not a one-off, and raised the possibility of a domino effect, with more blue and purple states declaring Trump ineligible to run; it all but guaranteed that the U.S. Supreme Court would ultimately step in to provide a definitive answer.

To prevail, Trump’s opponents will have to make a clean sweep of three primary legal questions:

  1. First, is the presidency an “office” and is the president an “officer” subject to Section 3?
  2. Second, did Trump “engage in insurrection” in constitutional terms?
  3. Third, is the amendment “self-executing”—meaning Congress need not pass enabling legislation before individual states can enforce it? The Supreme Court of the United States must say “yes” to all three to affirm the Colorado Supreme Court.

There are also a slew of secondary but still urgent questions swirling around. A sampling:

  1. Did state election laws give Trump sufficient due process to defend his inclusion on the ballot?
  2. Did Trump have a First Amendment right to engage in the speech that fomented the Capitol riot?
  3. Does the Colorado Republican Party have a First Amendment right to put Trump on the ballot?
  4. Then this puzzle, too: Section 3 technically prevents insurrectionists from holding office, not running for office; does that mean the judiciary has no authority to block Trump from the ballot, only to block him from actually taking office if he wins? Or is the decision to prevent him from taking office even if he is on the ballot left exclusively to Congress?

The U.S. Supreme Court has never before confronted any of these questions. It has become conventional wisdom that a majority of justices will find a reason to answer at least one of them in way that justifies reversing the Colorado Supreme Court, clearing the way for Trump to run in all 50 states. But which one? Scholars have put forth a growing pile of evidence that the presidency is indeed an “office” subject to Section 3’s restrictions; that January 6, was an “insurrection” in which Trump “engaged”; and that Section 3 is “self-executing” enforceable with or without an act of Congress.

The trouble for the Supreme court of the United States and, specifically, for the conservative justices is that this evidence creates a strong originalist justification for removing Trump from the ballot. It is rooted in the original meaning of Section 3, as understood by the lawmakers who wrote and ratified it, as well as the American public at the time. The conservative majority purports to follow original meaning wherever it leads, with no regard for politics, policy concerns, or real-world ramifications. If the Republican-appointed justices stay true to their principles a huge “if” they may feel compelled to agree with the Colorado Supreme Court on these main questions. That leaves two options. The court could seize upon one of Trump’s backup arguments as an escape hatch, even though they are pretty flimsy and do not necessarily provide an answer to other states questioning his eligibility. Or the court could face the music, disqualify Trump, and let the chips fall where they may.

There are, in addition to these strictly legal questions, a host of purely political, even existential democratic questions about the wisdom of using this particular mechanism knocking a former insurrectionist off state ballots in such a way as to essentially place the courts in the position of disenfranchising potentially millions of voters. Harvard Law School professor Lawrence Lessig made some of these arguments here in Slate (and has been cited for that proposition by Trump’s legal team and the Republican National Committee). There is the argument that if blue states can remove Trump from the primary ballot, red states will find some excuse to remove Joe Biden or some future Democrat in retaliation. Or that having Trump on some state ballots but not others will lead to a split decision in this coming presidential election that Trump and Republicans will be sure to exploit to justify rejecting whatever the outcome this time to more successful effect if public opinion is more mixed over the removal of Trump from some ballots than it was when Americans largely rejected Trump’s last attempt to illegally stay in power. Putting the judicial branch in charge of such a wildly political enterprise reads to some critics as a recipe for even more violence, vigilantism, and doubt over election outcomes. By contrast, others argue that pandering to Trump’s bullies and their bully threats is an act of supreme cowardice, and that efforts to remove Trump from American political life by way of impeachment, electoral defeat, and criminal trials have failed, leaving no other option but this one. (Multiple of Trump’s criminal trials are set for this year, though it’s unclear which if any will ultimately reach any sort of outcome prior to November’s election.)

Regardless of the outcome, the court’s decision to accept this case will be bad for democracy, bad for public acceptance of the institution, and bad for voters. Had the court not accepted the case, it would also have been bad for democracy, bad for public acceptance of the institution, and bad for voters. Perhaps the bitter truth is that American democracy is too creaky and wobbly to competently handle the quandary of an insurrectionist running to reclaim the office he previously attempted to steal. There are strong policy arguments on both sides of the disqualification debate arguments that the justices say they are forbidden to consider. The law is the law, and the rule of law is the rule of law, and the court is the entity tasked with determining whether the nation follows where that leads. Unlike with so many of their recent decisions, the people most affected by this decision, whatever it may be, will not be silent, or fearful, or mollified by the words. This may be the first major test this year of whether the court, and indeed the country, can weather 2024 with its institutions intact. It decidedly will not be the last.

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