Supreme Court Faces 'Ironclad' Argument in Trump Colorado Case: Strategist

The Supreme Court will likely face difficult legal maneuvering if its justices wish to return Donald Trump to the ballot in Colorado, a legal analyst argued, given the "ironclad" originalist argument at the heart of the ruling.

Trump, the former president who is currently the leading candidate for the 2024 GOP presidential nomination, was ruled ineligible to appear on ballots in Colorado last week following a ruling from the state's Supreme Court. The justices ruled in favor of petitioners who argued that Trump's actions around the January 6, 2021, riot at the U.S. Capitol disqualified him from holding elected office, per the terms of the 14th Amendment.

Section 3 of the 14th Amendment prohibits those who have sworn to uphold the Constitution and then engage in insurrection from holding office again. It was drafted initially to keep former Confederates out of office after the Civil War and has been cited in numerous Trump ballot challenges. This ruling out of Colorado is the first one to find any success.

The ruling is now expected to be appealed to the U.S. Supreme Court, and given the court's strongly conservative membership, overturned there.

Legal experts have, however, argued that the court would have a difficult time arguing out from under the Colorado ruling, which is based on an originalist and textualist reading of the U.S. Constitution, which the court has favored in recent years.

Sidney Blumenthal, a one-time political strategist and aide to former President Bill Clinton, laid out in a piece for The Guardian the Supreme Court rulings that relied on originalist and textualist arguments, including overturning Roe v. Wade. He argued that the Colorado ruling would require "shredding" such ideas to get Trump back on the ballot.

"Using cherry-picked, false, and bad-faith history, originalism has been the pure pretext for overturning Roe, dismantling commonsense gun regulations, ending environmental regulation, gutting consumer protection, and voiding voting and civil rights," Blumenthal wrote.

"Textualism is the sister doctrine of originalism, providing snatches of text from the constitution divorced from social and legislative context as if in scriptural fundamentalism to undergird the reversal of rights...It works hand in hand with originalism to exclude inconvenient portions of the historical record from judicial consideration."

He added: "The Colorado Supreme Court found, without disagreement, and by clear and convincing evidence, that Trump indeed engaged in insurrection on January 6. Consequently, the case is, on originalist and textual as well as historical grounds, open and shut. On the facts and the law, the court majority faces a brutal dilemma: either uphold Trump's disqualification or shred the doctrine on which their conservative jurisprudence stands."

In a statement to Newsweek, Florida state attorney and legal expert Dave Aronberg explained how SCOTUS could still bail out Trump without betraying its favored arguments.

"The conservative majority on the Supreme Court can still claim they are sticking to their originalist philosophy and overturn the Colorado decision by focusing on due process arguments," Aronberg wrote. "The Supreme Court can point to Section Five of the 14th Amendment, which gives Congress the power to enforce the Amendment, and rule that the framers of the Amendment wanted Congress and not each of the states to establish procedures to disqualify a candidate who engaged in insurrection. This is a possible, albeit imperfect, off-ramp for a Supreme Court that seeks a way out of this."

Update 12/26/2023, 5:45 p.m. ET: This article was updated with insight from Dave Aronberg.