Everything you need to know to understand the Supreme Court's decision in Anderson v. Trump

The major points of controversy, answered

Although the Supreme Court is only answering one question with respect to this case, there are four key issues surrounding it. Below, we address each question, the arguments made by each side, and what precedent will be set by the Supreme Court's opinion.

As a reminder, Jonathan F. Mitchell is Donald Trump's representative, Jason C. Murray is Anderson et al's representative, and Shannon Stevenson is Colorado Secretary of State Jena Griswold's representative. This section will rely heavily on their comments during the Supreme Court oral arguments.

Did Donald Trump engage in an insurrection?

Technically speaking, this is not actually an issue for the Supreme Court to rule on. The ruling was made in both of the previous cases that he did fit the legal definition of engaging in insurrection, and his team has not legally contested these decisions.

This is something that Judge Sarah B. Wallace had the power to do. Per Professor Melone, "Judge Wallace held a week-long evidentiary hearing and then ruled as a matter of law that President Trump is an insurrectionist and was not involved in the events of January 6 as merely a participant exercising First Amendment rights."

Notably, this is not a criminal conviction. Donald Trump has not been found guilty of treason, and he does not face any criminal charges for actions he did or did not take on January 6, 2021. Instead, it is simply a matter of legal fact that he did meet the qualifications of insurrection. Unless he takes action to fight that matter, it is settled.

"President Trump had a five-day trial in this case. He had the opportunity to call any witnesses that he wanted. ... But, in this whole case, from the trial court all the way up to this Court, President Trump has never identified a single process, other than expert depositions, that he wanted to have that he didn't get."

- Murray, Trump v. Anderson Arguments

As Murray stated during the oral arguments, Trump didn't appeal the decision that he was an insurrectionist. He appealed its consequences. This would indicate that there isn't a problem with the procedure at all. If there were problems with the investigative procedure, then those could be managed through appeal processes that already exist.

Mitchell doesn't actually try to make much of a claim against this. When asked, he explained that it's more important for the Supreme Court to agree on the broader questions, because rejecting the Colorado decision over this incident could open the door for other cases to be made against the former president. While he never fully accepts that Trump was involved in an insurrection, he also doesn't spend much time refuting it.

In fact, the Justices bring up the question more often than either of the lawyers, because if Section 3 does say that a President can be disqualified from holding further offices, then there needs to be a procedure for determining what "insurrection" means. Who gets to decide who is guilty of insurrection, and how can they do that?

This feeds into the later questions of who has the authority to enforce Section 3, but ultimately falls into the fear that, if it's allowed to happen in this instance, individual states can disqualify anybody for any reason.

Murray argued that January 6, 2021 was unique in the country's history, with no relevant parallels for over a century. Thus, it would take quite the situation for someone to argue that every given political candidate had committed insurrection. On that issue, only time can tell.

Ultimately, this is the least important question in this case. It only becomes significant if the Supreme Court accepts Anderson et. al's perspective on all the other key issues, at which point the conflict must move from broad readings of Constitutional law to the specifics of Donald Trump himself.

Was Donald Trump considered an "officer" of the United States?

Per Jonathan F. Mitchell, Section 3 does not apply to Donald Trump because the term "officer of the United States" only applies to appointed positions, not elected ones. During the oral arguments, Mitchell argued, with some guidance, that the President is both not an office that is prohibited and that the President is not an officer who could be prohibited in the future.

One thing to note is that this would be a very limited case, as the justices point out, because almost every former President held some position that would make them officers of the United States prior to becoming President. So, if the Court agrees with Mitchell, it would have limited impact on future cases, including a hypothetical trial against current President Joe Biden.

Mitchell agrees that, stepping back from the specific wording, "it does seem odd that President Trump would fall through the cracks," but he argues that the textual evidence is more important than the intent, since it can't be definitively stated.

Murray argues that, if Mitchell is correct, the Supreme Court must agree that 1) The original drafters of the 14th Amendment chose to leave out the Presidency for an unknown reason and 2) That potential mistake should be upheld, despite not being relevant to virtually any other President.

However, when pressed about whether "officers" and people who hold "offices" refer to the same people, Murray struggled to answer. The language of the Constitution itself is contradictory on that point, so the Supreme Court must decide which interpretation is the standard and which is only applicable in certain sections.

However, Murray's broad answer to why the President wasn't explicitly listed is because the Presidency is absolutely considered to be an office in the Constitution. Per his explanation, the list is to add people who don't hold offices, rather than to specify examples of those who do.

"This came up in the debates in Congress over Section 3 where Reverdy Johnson said, why haven't you included president and vice president in the language? And Senator Moore responds, we have. Look at the language, "any office under the United States." "

- Murray, Trump v. Anderson Arguments

This is one issue that the Supreme Court will almost certainly decide on in their official ruling. While there may be disagreements, an official decision will be made to eliminate future questions about whether the Presidency is a position that is beholden to the 14th Amendment.

At this point, it seems likely that the Court will agree that the Presidency should be included under this language, as virtually every other President would be included by default. It would be irrational to state that everyone but Donald Trump is bound by this amendment.

Is Section 3 self-executory?

With any law, we have to consider what the consequences for breaking it will be and/or how to enforce prohibitions it sets. In this case, one of the key questions is whether Section 3 has the authority to execute itself by virtue of being a Constitutional Amendment, or whether some external force must enforce it.

According to the Trump team, Section 3 is not self-executory. To make this claim, they rely on Griffin's Case as precedent. Based on Griffin's Case and how it was used in the Enforcement Act of 1870, Mitchell argues that Congress must explicitly enforce Section 3.

During oral arguments, several of the justices (particularly Justice Sotomayor) seemed to find this a weak precedent. Without it being taken into consideration, even Mitchell admitted that the issue becomes much more complicated.

Mitchell further argues that the candidate has until they are theoretically supposed to take office to gain Congressional forgiveness. However, the Justices seemed to struggle with this reasoning, as it implies that no condition can exist if it has the opportunity to be overturned.

If a person is convicted for a crime but then receives a pardon, that doesn't mean their crime didn't exist. Theoretically, any criminal could receive a pardon, so this argument would suggest that no actions can ever be taken based on a guilty verdict.

With that being said, however, Justice Gorsuch took issue with the idea of Section 3 being self-executing in the situation where insurrection was attempted by a sitting president. In his mind, if Section 3 is self-executing, then the President should be removed from office immediately, rather than requiring impeachment hearings.

Mitchell continued this line of reasoning, arguing that, if Section 3 is seen as self-executing and Trump is defined as having participated in an insurrection on January 6, then all of his actions in his final weeks in office might be overturned. This would create a dangerous situation, where actions that have been accepted for the last three years might be repealed.

Murray disagreed with this hypothetical but struggled to produce a solid answer on how people should respond to the President if he were, effectively, removed from office without a designated procedure. This hypothetical President would be both in office and not in office, making all his actions subject to reconsideration.

Because the precedential cases surrounding Section 3 of the 14th Amendment are so contradictory, the Supreme Court's ruling in this case will decide how any future cases of government-condoned insurrection are handled.

There are certainly skeptics among the Justices concerning how Section 3 could be self-executing without undermining the last two weeks of Trump's presidency. Still, even if the Justices do find that Section 3 is self-executory, they may hold that the states themselves do not have the authority to block a federal official. This prompts the final major question.

If Section 3 is relevant to Donald Trump, who has the power to enforce it (and how)?

This is probably the most difficult question for the Supreme Court to answer as they contemplate this decision. While the other questions simply require a yes or no answer, the question of enforcement is much more complicated.

According to Murray, the states should have the authority to make this decision as a matter of procedure, as they do when deciding if third party candidates should be permitted on their state's ballot. While federal powers can make legislation on the subject, they don't have to. The states' decisions are, effectively, a civil punishment for insurrection, rather than a criminal one.

However, Mitchell claimed that, following the precedent of Griffin's Case, the states have absolutely no authority concerning Section 3. Congress would have to enact legislation restricting the individual in question, and only they could decide how to enforce it.

According to Trump's lawyers, states should not be allowed to remove a candidate from the ballot because that would prevent Congress from forgiving them. A person disqualified from office can be allowed to practice if given a 2/3 vote by both Houses of Congress. While this is an unlikely possibility, the argument is that, since they are explicitly given this ability, the people must be allowed to vote.

If the Supreme Court agrees with Donald Trump's lawyers, he may be found ineligible from holding office, but he cannot be prevented from running for office unless Congress takes action to change that. However, Mitchell agrees that federal prosecutors do have the authority to disqualify the President if they choose to attempt that moving forward.

Turning to the other side of the argument, while Mitchell claims it would be disenfranchising to not allow voters to choose a potentially insurrectionist candidate, Murray claims it would be disenfranchising to allow them to place their votes for this candidate and then throw them out because it is now the right time to address Section 3.

Murray further argues that this is explicitly working against the designated rights of the states in the Constitution. Specifically citing Article II and the 10th Amendment, the states broadly have the right to control how elections proceed in their states.

However, as Justice Kagan suggested, that would allow one state to have a disproportionate effect on the election by denying the candidate their state's votes without a federal mandate. Justice Alito wanted to know what should be done if one state decided a person was an insurrectionist, while another decided they weren't. The result of that potential conflict was not resolved in the oral arguments.

Stevenson, who represents the Colorado Secretary of State, argues that the Secretary has the right to determine if a person is qualified for office. If they are not, then the Secretary has the authority to remove them from office. Should this be contested, there are methods of oversight to review the decision.

States may decide differently about a given candidate, but that already happens with less contentious candidates. There are always candidates (usually third party) who are on some ballots and not on others. Per Stevenson, that's a "feature" of the US system, not a problem.

Ultimately, the crux of this question is: Are insurrectionists immediately disqualified from holding office, unless Congress chooses to pardon them, or are they free to run for office, unless Congress chooses to block them?

And, just for a little more complexity, can Congress make this declaration on their own opinion, or would they have to find the candidate guilty of insurrection through a criminal trial under Section 2383 of Title 18?

This is almost certainly going to be the key deciding factor of the Supreme Court's decision. Of all four major points of controversy, it is easiest to believe that the states should not be able to decide the fate of a federal office. However, if that is the only point that the Justices agree with Trump's team on, it may simply launch the next stage of this case, where attempts are made to block Donald Trump from the Presidency on the federal level.

Slide 6 examines how politics may influence the Supreme Court's ruling.