USAnalysis

The unbottling of a law used against the prospect of a second Trump presidency

Nine supreme court justices must decide whether the Colorado supreme court erred in excluding Trump from its Republican primary ballot

A supporter of former US president Donald Trump speaking with journalists as anti-Trump demonstrators protest outside the US supreme court in Washington DC on Thursday. Photograph: Roberto Schmidt/AFP via Getty Images

Keith Duggan's face
Keith Duggan Washington Correspondent
Sat Feb 10 2024 - 05:48

The origins of Thursday’s Trump v Anderson US supreme court hearing in Washington will, in time, serve as a metaphor for a period when the mechanics of the United States constitution have been stress-tested in a way that must leave the original framers turning uneasily in their graves.

After hearing arguments the nine justices must decide whether the Colorado supreme court erred in excluding Trump from its Republican primary ballot.

The genesis of the case goes back to late December 2020, when Gerard Magliocca, a law professor at Indiana University, published a paper on a relatively arcane clause in the Fourteenth Amendment, the “insurrectionist ban” buried deeply in the constitution. It started out as a pandemic project which interested him in part because it simply hadn’t been written about or even mentioned much in over a century.

Little over a week after it was published, Donald Trump staged a rally in Washington after which his supporters stormed the Capitol building. When order was restored and the politicians gathered to record their disgust, a phrase uttered by minority leader Mitch McConnell made Magliocca’s ear prick. The veteran Republican described the episode as a “failed insurrection”. In a blog posting a few days later Magliocca noted that “If the president runs again in 2024, someone is bound to claim that he cannot serve”.

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Quite.

That was the beginning of the unbottling of Section 3 as an idea – and law – that could be wielded against the prospect of a second Trump presidency. In December 2022 a House select committee released its report on January 6th and recommended the disqualification of Trump under Section 3.

The following August William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St Thomas, two members of the Federalist Society, a heavy-punching conservative legal group, published a considered article opining that Trump must be deemed ineligible to be president because of the section precluding anyone involved in an insurrection from holding office. “When we started out neither of us knew what the answer was,” Baude said at the time.

Around the same time a group called the Free Speech for People filed a number of lawsuits to disqualify Republicans over their connections to January 6th, most prominently Republican Marjorie Taylor Greene. The cases were rejected but were ultimately test runs for the case filed by the Washington-based Citizens for Responsibility and Ethics in Washington [Crew], who carried out a comprehensive examination of the different state laws relevant to presidential elections and soon arrived at the decision that Colorado, where the election laws allow citizens to challenge a presidential candidate’s eligibility, was the state to push their case.

“People were saying it’s a pipe dream fantasy, or its silly or too hard. But where would America be if we didn’t do hard things?” Donal Sherman, an attorney with Crew, said at the time.

The case was brought by six Colorado voters. Four of those were Republicans, the most prominent of whom was 91-year-old Norma Anderson, a prominent state politician who didn’t hesitate when she was asked to become involved.

Norma Anderson, lead plaintiff in Trump v Anderson case, speaks with members of the media outside the US supreme court in Washington on Thursday. Photograph: Nathan Howard/Bloomberg

“I was born four months before FDR was elected,” she said in an interview at the time. “I’ve lived through a lot of presidents. Some I like, some I didn’t. But not one of them caused an insurrection, until Donald Trump.”

Ironically it was the Trump defence that pushed the Colorado case to the state supreme court after Sarah Wallace, the trial judge, found that “there was an insurrection and that mob was there on Mr Trump’s behalf” at the original hearing. To national shock the Colorado supreme court not only endorsed her view it went one step further by finding that the disqualification clause covered the presidency.

“I was surprised and delighted,” Anderson said of that verdict. “I felt they read the constitution correctly. I sat and watched January 6th all day long. And I cried. I still cry thinking about it. And anybody that would do that – the last time the Capitol was raided was in 1812, by the British. What’s the difference?”

The Trump legal team immediately appealed to the supreme court, prompting a hasty dusting down of venerable history tomes by the venerable justices. You could hear the vexation and uncertainty in the voices of the nine justices as they quizzed the prosecuting and defence counsels on their interpretation of the law and tried to place themselves into the minds of the framers of the constitution – and the political atmosphere in America in the years after the civil war. One exchange that gained traction on social media featured Clarence Thomas, the longest serving justice, quizzing the Colorado case lawyer Jason Murray on his interpretation of Section 3.

“It would seem that particularly after Reconstruction and after the compromise of 1877 and during the period of redeemers that you would have kind of conflict. There were a plethora of confederates still around; there were any number of people who would continue to run for state offices or national offices so that would suggest there would at least be a few examples of national candidates being disqualified if your reading is correct,” he said.

Donald Trump could soon have a victory at the US Supreme Court as the justices seemed ready to reject a judicial decision kick him off the ballot in Colorado.

“I understand the state positions,” he said when Murray responded that there were examples at state level.

“What we are talking about here is national candidates. If you look at [Shelby] Foote or [James] McPherson they all talk about the conflict after the civil war and there were people who felt very strongly about retaliating against the south. The radical Republicans. But they did not think about authorising the south to disqualify national candidates. And that is the argument you are making.”

The reference to those touchstone civil war period historians was revelatory. This has been an election in which the civil war has been invoked as though it was an event that occurred in the lifetime of the voters. In the hours after the hearing several commentators noted that there is a view that justice Thomas should have recused himself from this hearing as his wife, Virginia “Ginni” Thomas, is a noted Trump supporter and attended the rally on January 6th – but not the march afterwards.

The supreme court will reach its decision in its own sweet time. But all observations voiced seemed weighted against finding with the Colorado supreme court. It’s a hurdle the Trump team may clear and a day that will stand as testimony to an extraordinary period in American political life.

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