The Supreme Court is set to hear one of the most consequential cases in the nation’s history while considering complex legal questions that could affect the election.
Oral argument will take place on Feb. 8 in Trump v. Anderson, which questions whether the Colorado Supreme Court erred in ruling that a post-Civil War constitutional provision disqualifies former President Donald Trump from appearing on the state’s ballot.
Depending on their ruling, the justices could influence the presidential election in a way not seen since Bush v. Gore in 2000.
In that case, the Supreme Court ruled that Florida’s decision to recount the 2000 presidential election ballots violated former President George W. Bush’s right to equal protection under the 14th Amendment.
Now, that same amendment is before the court but with a new set of justices (besides Justice Clarence Thomas), a provision tested much less in the courts than the equal protection clause, and an untold number of questions about its meaning.
One of the many amicus briefs submitted to the court was authored by several law scholars, including former Ohio Solicitor General Edward Foley. The authors warn that the current case is “more perilous” than the one the court faced in Bush v. Gore.
They worry that if the Supreme Court passes the buck to Congress rather than issuing a decisive opinion, it could lead to political violence.
They speculated that Congress effectively invalidating Americans’ votes could lead to a scenario similar to the Jan. 6, 2021, Capitol breach.
“Requiring Congress to take up the issue in an inherently political process, on the fourth anniversary of the U.S. Capitol riot, would be a tailor-made moment for chaos and instability,” the authors wrote.
“The pressure on Congress from all sides would be enormous, as would be the temptation to resolve the disqualification question not as a matter of the legal or factual merit, but as an exercise of political power.”
Section 3 of the 14th Amendment, ratified in 1868, was intended to prevent former Confederates from taking office.
Former Colorado state legislator, Republican Norma Anderson, and other state voters argue that its wording also applies to the events of Jan. 6, 2021.
More specifically, they argue that President Trump is an “officer of the United States,” who engaged in the type of insurrection covered by Section 3.
President Trump has suggested that ballot challenges are altogether inappropriate given that Section 3’s wording bars someone from “[holding] office,” not running for it.
Feb. 8 and Beyond
Arguing for President Trump on Feb. 8 will be Jonathan Mitchell—one of former Supreme Court Justice Antonin Scalia’s clerks and Texas’ former solicitor general.
Mr. Mitchell has argued before the Supreme Court many times and has been credited with the controversial enforcement mechanism in Texas’ heartbeat law, which the top court allowed to proceed after a challenge in 2021.
Both sides will have 40 minutes to argue their respective cases.
For the respondents, Colorado Solicitor General Shannon Stevenson will have 10 minutes to represent Secretary of State Jena Griswold’s case and the remaining 30 minutes are allocated to Jason Murray, who represents the voters.
President Trump is arguing not only that multiple aspects of Section 3 don’t apply to him but that the Colorado courts mishandled his case.
President Trump appeared at the courthouse for his immunity hearing before the U.S. Court of Appeals for the D.C. Circuit on Jan. 9. However, CNN reported that he isn’t expected to attend the Supreme Court hearing on Feb. 8.
In the appeals court, President Trump argued that the legal doctrine of presidential immunity shielded him from prosecution in his Jan. 6-related D.C. trial. A unanimous decision by the appeals court rejected his arguments and held that he isn’t immune.
The immunity case could go before the Supreme Court, and along with the Section 3 challenge, it could throw a wrench in President Trump’s already volatile schedule heading into the November election.
The stakes of the justices’ decision are unusually high. A powder keg of major court decisions, campaign politics, and a gridlocked Congress could explode into civic unrest.
Among the Supreme Court’s various legal options is sending the Section 3 issue in some way back to the states or telling Congress to intervene.
The Mr. Foley, et al, brief urges decisive action.
“This Court stands between the potentially disastrous turmoil that would result and a comparatively peaceful election administered consistent with the Constitution and the rule of law,” the authors wrote.
The Supreme Court regularly livestreams oral arguments, and the hearing is expected to be one of the most widely observed in the court’s history. It’s also likely to be one of the most consequential, given the justices’ apparent need to address relatively novel legal questions.
How they will resolve those questions is virtually impossible to predict, but here are some general directions the justices could take.