Supreme Court erases part of Constitution to protect insurrectionist Donald Trump | Opinion

Erwin Chemerinsky
Thu, February 8, 2024 


Two and a half hours of oral arguments in the Supreme Court left no doubt as to the result: Donald Trump can run for president of the United States.

Sometimes it is hard to predict the outcome in a case based on the oral argument, but none of the conservative justices left any doubt that they would reverse the Colorado Supreme Court and hold that Trump was eligible to be president. Even some of the liberal justices, like Elena Kagan and Ketanji Brown Jackson, asked questions that suggested they might rule for Trump.

In December, the Colorado Supreme Court ruled, 4-3, that Trump was disqualified from running for president by Section 3 of the Fourteenth Amendment. Section 3 of the Fourteenth Amendment provides: “No person shall 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 . . . 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. But Congress may, by a vote of two-thirds of each House, remove such disability.”


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At the oral argument, the justices raised many possible grounds that they might use to rule in favor of Trump. Chief Justice John Roberts indicated that he sees the Fourteenth Amendment as limiting the power of state governments, not empowering them to keep a candidate off the ballot. Justice Brett Kavanaugh clearly believes that Section 3 cannot be enforced until there is a statute adopted by Congress.

Several justices, including Brown Jackson, questioned whether Section 3 applies to the president because that position is not specifically mentioned in the provision. Meanwhile, Justice Neil Gorsuch expressed that Trump had not been convicted of insurrection, and Kagan asked whether one state should be able to decide this for the country.

In light of this, the ultimate result seems a foregone conclusion: Trump will be the Republican candidate for president. Some will applaud this outcome, and some will lament it. From a constitutional perspective, it is very troubling.

The court’s decision effectively erases Section 3 of the Fourteenth Amendment from the Constitution. The text of the provision is clear: A person is disqualified from being an officer of the United States if, having taken an oath to uphold the Constitution, they participate in an insurrection.

Trump took such an oath and played a key role in the insurrection of Jan. 6.

By ruling in favor of Trump, the court will be effectively saying that no court can ever enforce Section 3, and the provision will be rendered a nullity.

In fact, many of the questions at oral argument suggested that none of the constitutional limits on who can be president should be enforced by the courts. Kavanaugh, in questioning an attorney who was representing Colorado voters, said, “Your position has the effect of disenfranchising voters to a significant degree.” Roberts said that if Trump was removed from the ballot in Colorado, other states would do this too.

“It’ll come down to just a handful of states that are going to decide the presidential election,” the chief justice said. “That’s a pretty daunting consequence.”

But that would be true of enforcement of any of the restrictions in the Constitution as to who can be president — the requirement that the president be 35 years old, a natural born citizen, 14 years a resident of the country and not have already served two terms. Any enforcement of these provisions to disqualify a candidate would “disenfranchise” voters who want to elect that individual. Any challenge would have to be initially brought in a court in one state.

That is what is most troubling about the likely decision in Trump v. Anderson is that the Supreme Court is abdicating its judicial role of enforcing the Constitution of the United States. Every provision in the Constitution, including Section 3 of the Fourteenth Amendment, exists to limit what the government and the political process can do.

The court should never fail to enforce the Constitution because of the political preferences of the justices or for the sake of political expediency. But that is exactly what is likely to happen in Trump v. Anderson.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.