Rule of Law

Colorado’s Trump Disqualification Case Will Test the Supreme Court | Opinion

On Tuesday evening, in ruling that former President Donald Trump engaged in insurrection that constitutionally disqualifies him from holding future office, the Colorado Supreme Court announced it was honoring its “solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.” This decision demonstrated the Colorado Supreme Court’s commitment to core judicial principles. A request that the United States Supreme Court take up the case next will be a test of the justices’ commitments as well.

A striking number of Supreme Court justices purport to professed to interpret constitutional language according to the way the public would have understood that language when a particular constitutional provision was enacted. If the justices are faithful to their methodological commitments and allow constitutional text and history to serve as their guide, then the Supreme Court should uphold Colorado’s decision.

Section Three of the 14th Amendment disqualifies from office any individual who took an oath to support the Constitution and then “engaged in insurrection or rebellion against the same.” On Jan. 6, 2021, Trump urged his supporters to reject the 2020 election results and “confront this egregious assault on our democracy”; “walk down to the Capitol . . . [and] show strength”; and “fight like hell” to prevent them from “not hav[ing] a country anymore.” His supporters predictably did just that. They breached the Capitol building while armed with weapons, assaulting law enforcement officers, and threatening elected officials responsible for certifying the election. And Trump did not stop there. Even after the violence had openly broken out, he continued a pressure campaign on Vice President Mike Pence and multiple lawmakers to thwart the will of the electorate.

In determining whether Trump’s actions disqualify him from holding office under Section Three, the Colorado Supreme Court wisely emphasized constitutional text and history. Detailing its approach, the court said it aimed to “prevent the evasion of the provision’s legitimate operation and to effectuate the drafters’ intent.” In case of ambiguity, it said it would look to, as the U.S. Supreme Court phrased it in 2012, “the textual, structural, and historical evidence put forward by the parties.”

Throughout its 133-page majority decision, the Colorado Supreme Court followed through on that promise. To support its constitutional findings, the court relied on definitions from the time of the 14th Amendment’s ratification, contemporaneous interpretations of Section Three, and the textual framework of the Constitution as a whole. Fidelity to constitutional text and history will require no less from the U.S. Supreme Court.

This case could also prove the first high-profile test of the Supreme Court’s commitment to its recently adopted code of ethics—a set of principles that the justices regard as governing their conduct. All eyes will be on Justice Clarence Thomas to see whether he recuses himself, in light of his wife Ginni Thomas‘s heavily reported advocacy efforts against certification of the 2020 election and her actions leading up to and on Jan. 6. The code of conduct is concerned about, among other issues, the “appearance of impropriety,” and it directs justices to disqualify themselves “in a proceeding in which the [j]ustice’s impartiality might reasonably be questioned.”

Finally, the American public will be watching the U.S. Supreme Court’s willingness to act in a timely manner on this case, because a delay in the outcome would itself have a significant effect on the conduct of the 2024 election. This is a court that, when it wants to, can move remarkably quickly—particularly when it comes to elections and other time-sensitive matters. In Bush v. Gore, it took the court only three weeks (between Thanksgiving and Christmas, no less) to decide two cases arising from Florida’s recount during the 2000 election. It reviewed, in under a month, President Jimmy Carter‘s decision during the Iranian hostage crisis to freeze and transfer Iranian assets. And in the Pentagon Papers case, the court issued a decision allowing newspapers to publish excerpts of the classified documents only 10 days after the cert petition was filed, and only four days after it heard oral argument.

In Anderson v. Griswold, the Colorado Supreme Court embraced a commitment to honorable judicial principles and to constitutional analysis guided by text and history. If the U.S. Supreme Court is similarly faithful, Colorado’s decision should be promptly upheld.