Local law experts hope Supreme Court provides a more clear answer in Colorado case centering on Trump eligibility

Feb. 8—Brown v. Board of Education. Watergate. Bush v. Gore. The Army-McCarthy hearings. Thursday's oral arguments in the U.S. Supreme Court.

These divisive moments in the United States' past united millions of people in one common goal: to witness history made in real time.

Some law students and professors in Idaho were among droves of people who spent their Thursday morning tuning in live to oral arguments in the Trump v. Anderson case taking place in the nation's highest court.

Justices on the U.S. Supreme Court heard a case challenging former President Donald Trump's eligibility to hold office again. Through more than two hours of oral arguments, the court's nine justices appeared poised to reject the effort to ban the Republican presidential front-runner from a state ballot on allegations that he engaged in insurrection.

Late last year, the Colorado Supreme Court made an unprecedented ruling to remove Trump from the state's Republican primary ballot. The historic 4-3 decision marked the first time that the 14th Amendment has been used against a presidential candidate. In total, the 14th Amendment's disqualification clause has only been used eight times in U.S. history since the year 1860.

According to the clause, nobody may "be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

The clause doesn't explicitly list the president as an officer of the court, but Colorado justices ruled that the president is an "officer of the United States."

How the court rules in Trump v. Anderson will not only determine whether Trump will appear on Colorado's ballot, but will probably decide whether the former president will legally be able to run in the general election.

Professor Benjamin Cover teaches constitutional law at the University of Idaho's Boise campus. He said the Supreme Court seemed worried on Thursday about different states being able to decide individually whether to put Trump on their respective ballots, should the court rule in favor of Colorado.

"I'm guessing the court is trying to find some consensus on this," Cover said. "I think people are more likely to respect the decision of the court the more that the justices agree with each other. I think it would be bad for the country if the six Republican appointees all voted in favor of Trump and the three Democratic appointees all voted the other way."

The court may rule in favor of or against Colorado. But it also has a third option to rule that Trump v. Anderson is a political question and would be better left in the hands of Congress. Justices on Thursday appeared hesitant to rule that Colorado and other states have authority to ban candidates in a national election unless Congress passes a law allowing them to do so or clears up the vague language in the 14th Amendment.

Norma Anderson and other plaintiffs in the case argue that Trump's actions in the weeks following the 2020 presidential election disqualify him from holding office under the 14th Amendment. Trump's lawyers argue Colorado acted outside the bounds of the Constitution in its ruling because the 14th Amendment bars insurrectionists from holding an office, not running for it, and that the framers of the Constitution would have explicitly written the word "president" in the disqualification clause if that was their intention.

During the oral arguments, Chief Justice John G. Roberts said a ruling in Colorado's favor sounded like it would have a "daunting consequence."

"I would expect that, you know, a goodly number of states will say, 'whoever the Democratic candidate is, you're off the ballot,'" Roberts said, "and others for the Republican candidate, 'You're off the ballot.' It'll come down to just a handful of states that are going to decide the presidential election."

Cover, along with other law experts in the region, told The Spokesman-Review that it would do the court well to issue a clear decision in Trump v. Anderson.

The word "insurrection" barely came up in Thursday's hearing. This was because Trump's lawyers had many other case options to pick from, said Ann Murphy, a law professor at Gonzaga University.

"I thought Trump's lawyers made a very good argument," Murphy said. "I think they were smart to keep it further away from a legal issue and look at it more globally. They were saying, '(The court) just can't decide in favor of Colorado, or else it will be chaos."

University of Washington law Professor Elizabeth Porter said she wasn't surprised about the way Thursday's oral arguments unfolded.

"It would be a truly extraordinary measure for a state to remove a presidential candidate from the ballot," Porter said. "I think the court treated the question with an appropriate amount of gravity."

Porter added that Trump v. Anderson is an unusual case for the Supreme Court to hear, because generally the court grants review after there's been a lot of action in lower courts.

"There are an unusually large amount of unknowns here," Porter said. "Pretty much, the court is trying to read the tea leaves from the 1800s' Reconstruction Era. It just makes the whole enterprise a little atypical."

Former Washington Secretary of State Kim Wyman said she'd like to see the Supreme Court definitively answer whether Trump will be on the ballot in all 50 states.

"The Supreme Court needs to step up and answer that question," Wyman said. "If they don't, we're going to have to answer the question state-by-state. That is going to be very disruptive for voters when election officials actually don't know who should or should not be on a ballot."

Experts say it is unclear when the Supreme Court will make a ruling in Trump v. Anderson. But with dozens of state primaries quickly approaching this spring, time is short.

Ellen Dennis' work is funded in part by members of the Spokane community via the Community Journalism and Civic Engagement Fund. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper's managing editor.