Trump, 14th Amendment put Supreme Court on the spot

Decisions kicking former President Trump off the ballot in two states — Colorado and Maine — are amping up the pressure on the Supreme Court to resolve questions about Trump’s eligibility under the 14th Amendment.

The Trump campaign appealed the Maine ruling Tuesday and is expected to do the same in Colorado, the latter of which especially puts the spotlight on the Supreme Court and its 6-3 conservative majority, which includes three justices Trump nominated during his first term in the White House.

The looming decisions for the Supreme Court risk thrusting the justices into the political spotlight at a fraught time for the nation’s highest court, which has already been forced to confront other matters implicating Trump and the future of the 2024 race.

A battle over Trump’s criminal immunity is expected to soon return to the justices, and they already agreed to weigh in on the scope of an obstruction charge used against Trump and hundreds of Jan. 6 defendants.

But the 14th Amendment issue could distinctively stand out.

Legal experts long anticipated the patchwork of challenges would reach the Supreme Court, which has never squarely resolved the meaning of the 14th Amendment’s insurrection ban, with many observers believing the justices will ultimately keep Trump’s name on the ballot one way or another.

Former President Trump delivers remarks during a campaign rally on December 17, 2023 in Reno, Nevada. (Photo by Justin Sullivan/Getty Images)

Some state courts tossed lawsuits challenging Trump’s primary ballot listing, kicking the can down the road to the general election. But the Colorado Supreme Court’s extraordinary ruling knocking Trump off the ballot suddenly provided the justices in Washington with a major vehicle to resolve the weighty legal questions soon, rather than closer to Election Day.

The amendment prohibits someone from holding “any office … under the United States” if they “engaged in insurrection” after taking an oath to support the Constitution. Citing Trump’s actions surrounding the Jan. 6, 2021, Capitol attack, more than two dozen challenges to his ballot eligibility have been filed across the country.

In Colorado and Maine, the only states to rule Trump ineligible so far, his name will remain on the ballot while he appeals. Both states hold primaries on Super Tuesday, which will fall on March 5.

Trump has not yet appealed the Colorado decision removing him from the ballot, but he is expected to do so imminently. The Colorado GOP’s petition, meanwhile, already landed, urging the justices to take up the case with considerable speed.

“For the first time in American history, a former President has been disqualified from the ballot, a political party has been denied the opportunity to put forward the presidential candidate of its choice, and the voters have been denied the ability to choose their Chief Executive through the electoral process. This unprecedented decision urgently merits this Court’s review,” the state party’s lawyers wrote to the justices.

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The plaintiffs — four Republican and two independent voters, who are backed by watchdog group Citizens for Responsibility and Ethics in Washington (CREW) — agreed the Supreme Court should take up the case, albeit only to weigh a subset of the issues the Colorado GOP wants considered. The Colorado secretary of state took a similar position.

Trump’s name remains on Colorado’s ballot until the high court disposes any appeals. Notably, while the state party asked for an expedited decision before Super Tuesday, the plaintiffs said that proposal “doesn’t go far enough” and urged the Supreme Court to proceed even faster.

The plaintiffs want the justices to consider taking up the case at their closed-door conference this Friday, and assuming they agree to hear the dispute, schedule oral arguments for Jan. 19 and issue a decision before Feb. 12.

The request is aimed at resolving the case before most Colorado voters receive their primary ballots in the mail, and such a timeline would also lead to a decision before the vast majority of states hold their primaries.

“This case is of utmost national importance,” the plaintiffs’ attorneys wrote in court papers Tuesday. “And given the upcoming presidential primary schedule, there is no time to wait for the issues to percolate further. The Court should resolve this case on an expedited timetable, so that voters in Colorado and elsewhere will know whether Trump is indeed constitutionally ineligible when they cast their primary ballots.”

In Maine, the dispute is next set to unfold in state court. But that battle, too, could soon reach the justices in Washington.

State law prescribes a speedy timeline that would culminate in a decision from Maine’s top court within roughly five weeks. The losing side could then push the case to the Supreme Court.

Trump on Tuesday formally appealed Maine Secretary of State Shenna Bellows’s (D) decision. Under state law, the judge is bound to decide the case within 20 days of Bellows’s decision.

In the meantime, the Colorado and Maine rulings have been viewed as a political gift to the Trump campaign. Even some of the former president’s critics have suggested Trump’s fate on the ballot should be determined by voters, while Trump’s allies have seized on the decisions as further evidence that establishment figures are biased against him and want to keep him out of office.

Trump and many other Republicans have expressed confidence the Supreme Court will ultimately rule to keep the former president on the ballot, settling the issue as the GOP primary calendar gets under way.

“Look, if there was any validity about keeping Trump off a ballot, you would see 48 other states trying to do the same thing,” New Hampshire Gov. Chris Sununu (R), who has endorsed Trump rival Nikki Haley in the primary race, said Sunday. “Everybody just hopes that the Supreme — U.S. Supreme Court gets involved, overturns what Maine and Colorado are trying to do, make sure Trump’s on the ballot in 50 states, and we move on.”

But such a ruling would likely only reinforce the sense among some Americans — Democratic in particular — that the Supreme Court is increasingly wading into political issues.

The court and its conservative majority have in the past two years overturned Roe v. Wade, ended affirmative action and been at the center of questions about its ethics. In the coming weeks, it will also play a role in whether Trump’s criminal trials move forward before the election.

A September Gallup poll found just 41 percent of Americans approve of the Supreme Court’s job performance, near a record low of 40 percent set in September 2021.

“I think that the urgency is for the Supreme Court to act,” Rep. Jamie Raskin (D-Md.) said Sunday on CNN. “But I think it’s going to be tough for some of them, if they want to keep Trump on the ballot, if they’re falling for the argument that this is undemocratic.”