The U.S. Supreme Court will hear oral arguments on Thursday in a highly-anticipated case that could forever disqualify Donald Trump from the presidency over his role in the deadly Capitol attack on Jan. 6, 2021.
The case stems from one of several pending lawsuits seeking to remove Trump from the ballot. The outcome could have massive political and legal implications for the former President, who is currently in the lead for the Republican presidential nomination. Trump has warned the Justices that a ruling against him would “unleash chaos and bedlam,” placing the Supreme Court in a pivotal role that could alter the course of this year’s presidential election.
The Supreme Court has never before declared a leading presidential candidate disqualified from holding office, but the Justices decided to consider that question after Colorado and Maine ruled in December that Trump had engaged in an insurrection through his efforts to overturn the 2020 election results and is therefore ineligible to serve as president again under the Constitution’s 14th Amendment.
The case will mark the Supreme Court’s most direct involvement in a presidential election since Bush v. Gore in 2000, when the court effectively delivered the presidency to Republican George W. Bush by halting a Florida vote recount. The court’s reputation sank after that ruling as critics assailed it for being guided by an overt political ideology.
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“This is the biggest election-related case in over 20 years,” says Jessica Levinson, a constitutional law professor at Loyola Law School. “The Court still has a little bit of PTSD after Bush v. Gore, and I think they worry that if they were to conclude that Trump isn’t eligible to run, that that would harm their legitimacy.”
Trump requested the Supreme Court intervene in the case after Colorado’s top court disqualified him from the ballot in mid-December, a decision that is now on hold. “All I want is fair; I fought really hard to get three very, very good people,” Trump said at a rally on Friday, referring to the three conservative justices he appointed during his presidency. His legal and political future may now lie in their hands.
The case’s legal argument revolves around Section 3 of the 14th Amendment, which bars those who had taken an oath to “support” the Constitution from holding office if they then “engaged in insurrection or rebellion.” The provision was adopted after the Civil War to prevent Confederates from returning to power. But Trump’s attorneys argue that Section 3 does not apply to presidents or political candidates since neither are specifically mentioned in the text.
Rick Hasen, an election law professor at UCLA Law School, says a ruling on those grounds would be “hyper-technical” but could be appealing to textualist justices who often interpret the Constitution based on the literal wording of its provisions. “To someone who’s not a lawyer, that argument would make no sense,” he says. “Like, what do you mean the dog catcher is disqualified, but not the President?”
The attorneys pushing to remove Trump from the ballot contend that the President is considered an “officer of the United States” and that the amendment would not have been drafted to only bar low level oath-breakers from returning to office. Levinson says the drafters of the amendment were probably more interested in stopping an oath-breaker from leading the entire government than serving in a smaller role. “It seems to me that would apply with even more force to the presidency than to a county commissioner,” she says.
The Justices will also confront whether the violent Capitol attack on Jan. 6 was an insurrection, and whether Trump personally engaged in the act. Witness testimony given to the Jan. 6 committee in the House revealed that Trump had been repeatedly warned about the legal and practical dangers of encouraging his supporters to march to the Capitol that day as he sought to overturn Joe Biden’s victory. Trump also knew the mob was heavily armed and dangerous, according to the testimony, yet he still urged the group to go to the Capitol and tried to join himself. Trump has disputed both matters, claiming in legal filings that Jan. 6 was not an insurrection “in the context of the history of violent American political protests.”
“‘Insurrection’ as understood at the time of the passage of the 14th Amendment meant the taking up of arms and waging war upon the United States,” Trump’s petition said. “His only explicit instructions called for ‘protesting peacefully and patriotically,’ to ‘support our Capitol Police and Law Enforcement,’ to ‘[s]tay peaceful,’ and to ‘remain peaceful,’” his lawyers added.
The Justices could decide that Trump’s actions on Jan. 6 were political speech, and thus protected by the First Amendment, Levinson says. But the Colorado Supreme Court already concluded that Trump’s efforts to overturn the results of the election were not simply an act of political protest.
Kim Wehle, a professor at the University of Baltimore School of Law and former assistant U.S. attorney, believes that from a strictly legal standpoint, the Supreme Court should disqualify Trump from the ballot. But the political nature of the case, she says, combined with the ramifications of excluding Trump from the presidential race, could be highly inflammatory. “The Chief Justice has established himself as an institutionalist and he’s got to understand if the Supreme Court steps in and puts its thumb on the scale of this election, it’s just going to be another nail in the coffin of its own legitimacy,” Wehle says.
The Supreme Court is currently made up of six conservative Justices and three liberals. A CNN poll released Monday found that most Americans—58%— don’t have much confidence in the Supreme Court to make the “right decisions” on legal cases related to the 2024 election. Hasen says that Chief Justice John Roberts may be looking to avoid a partisan split to help quell concerns about the court’s decision-making. “In the eyes of the public,” Hasen says, “it would look like just a political decision” if the Court comes to a 6-3 decision. The Justices could try to find a way to decide the case without addressing the underlying questions about the insurrection and 14th Amendment, which would likely set an explosive precedent.
“Trump’s actions have really been a stress test on our Constitution,” Levinson says. “And this is a decision that will apply not just to Trump; it will have a precedential effect. And, depending on how the court makes its ruling, it could have consequences for future presidential candidates and for how seriously we take future efforts to stop the peaceful transfer of power.”
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