The Grant-to-Off-Ramp Pipeline: A Study of the Supreme Court's Use of Procedural Off-Ramps
In January 2024, the Supreme Court agreed to resolve a contentious and unprecedented dispute over then-candidate, and former President, Donald Trump’s eligibility to run for president. Footnote #1 content: Amy Howe, Supreme Court Agrees to Hear Trump Plea to Remain on Colorado Ballot, SCOTUSBLOG (Jan. 5, 2024, at 00:00 ET), https://www.scotusblog.com/2024/01/supreme-court-agrees-to-hear-trump-plea-to-remain-on-colorado-ballot [https://perma.cc/S5LY-SC5V]. Section Three of the Fourteenth Amendment bars anyone who takes an oath to support the Constitution from holding a government office if they “engage[] in insurrection” or “give[] aid or comfort to” enemies of the United States. Footnote #2 content: U.S. CONST. amend. XIV, § 3. Ahead of Colorado’s Republican primary, a group of voters claimed that, pursuant to Section Three, President Trump’s role in the January 6, 2021 attack at the U.S. Capitol made him ineligible to serve as president. Footnote #3 content: Howe, supra note 1. The Colorado Supreme Court agreed with the voters and held that President Trump could not appear on the state’s primary ballot. Footnote #4 content: Anderson v. Griswold, 543 P.3d 283, 297 (Colo. 2023)(per curiam). President Trump appealed, asking the Supreme Court to determine whether Section Three disqualified him. Footnote #5 content: See Petition for Writ of Certiorari at i, Trump v. Anderson, 601 U.S. 100 (2024) (No. 23-719). The case—Trump v. Anderson Footnote #6 content: 601 U.S. 100 (2024) (per curiam). —required the Court to venture into uncharted constitutional territory because Section Three had rarely been invoked against anyone, let alone a former president. Footnote #7 content: Melissa Quinn, The 14th Amendment’s Insurrection Clause and How It’s Being Used to Try to Keep Trump Off the Ballot in 2024, CBS NEWS (Feb. 8, 2024, at 08:59 EST), https://www.cbsnews.com/news/section-3-14th-amendment-us-constitution-trump-2024-ballot [https://perma.cc/PD2D-7KXR]; Christina Pazzanese, Trump’s Cloudy Future, HARV. GAZETTE (Dec. 20, 2023), https://news.harvard.edu/gazette/story/2023/12/no-easy-exit-ramp-for-scotus-on-trump-harvard-scholar-says [https://perma.cc/T2FP-JWY4]. Some of the ambiguities that the Court would have to resolve include what constitutes an “insurrection,” what one must do to “engage” in or give “aid and comfort” to an insurrection, and to which offices Section Three applies. Pazzanese, supra. And given that President Trump was the frontrunner for the Republican presidential nomination, Anderson would also have significant political implications. Footnote #8 content: Nik Popli, Justices Seem Wary of Kicking Trump off the Ballot in Historic Election Case, TIME (Feb. 8, 2024, at 13:59 ET), https://time.com/6692919/supreme-court-trump-v-anderson-oral-arguments [https://perma.cc/NJ7C-DABY].
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