Supreme Court justices will have to carefully consider four separate questions related to the 14th Amendment in order to reach a conclusion about Donald Trump’s ballot eligibility, says Jack M. Beermann, the Philip S. Beck Professor of Law at the BU School of Law. Photo via Unsplash/Brad Weaver

Politics

Will Trump Appear on the 2024 Presidential Ballot? Supreme Court to Weigh In

LAW’s Jack Beermann says he “wouldn’t be surprised” if the court returns a 9-0 decision in favor of allowing the probable GOP candidate to appear on presidential ballots this year

On Thursday, the United States Supreme Court will hear arguments in what is shaping up to be its biggest election case in almost a quarter-century. Justices will have to decide whether Donald J. Trump—who is, by most accounts, the presumed Republican nominee for president in this year’s election—can be excluded from the ballot because of his involvement in the January 6, 2021, attack at the US Capitol. 

The case comes to the high court after two state supreme courts—Colorado and Maine—took Trump off their state presidential or primary ballots, finding him ineligible to hold the office. Challenges to Trump’s eligibility are pending in 11 more states. 

The case is more complex than a simple yes or no, though. It hinges on the interpretation of a fairly obscure Civil War–era provision of the Constitution. Section 3 of the 14th Amendment provides that no one “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,” if that person had previously sworn, “as a member of Congress, or as an officer of the United States” to support the US Constitution, but then “engaged in insurrection or rebellion” against the federal government.

Justices will have to carefully consider four separate questions related to this Constitutional provision in order to reach a conclusion, says Jack M. Beermann, the Philip S. Beck Professor of Law at the School of Law. 

“The first is whether what happened on January 6 was an insurrection, within the meaning of the 14th Amendment,” Beermann says. “Second is whether Trump participated in or incited the insurrection, if one happened. Third: do states have the power or the duty to act on that—to disqualify someone from the presidential ballot, because of it? And finally, is the president considered an ‘officer of the United States’ under the 14th Amendment?” 

None of these questions offer easy or clear-cut answers, Beermann says. The 14th Amendment was, after all, written with Confederate rebels in mind, not 21st-century presidential candidates. Beermann says he’ll be listening on Thursday for questions from the justices that will signal their attitudes about the four main questions of the case, but particularly the questions from justices who tend to take a more originalist view of the Constitution: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. 

“I’ll be listening to how strongly some of the more originalist members of the court try to link it to what happened in the Civil War,” he says, “because the civil insurrection then was of a completely different nature—it was an attempt to replace the government of the United States. None of the southerners in 1860 were saying they were the president of the United States; they were forming a separate country. And so there’s an argument from the originalist perspective that you need to understand what is and isn’t an insurrection based on that behavior.”

Still, and despite the justices’ different constitutional perspectives, Beermann thinks the court will return a 9-0 opinion in favor of allowing Trump to appear on the ballot, if he does indeed emerge as the Republican nominee. Returning a split decision in a case as monumental as this, Beermann says, could sow chaos in an already highly polarized republic.

“I’m not so sure that this case is one of those cases where the composition of the court is really going to matter,” Beermann says. “I wouldn’t be surprised if the decision was unanimous, because I can’t imagine any of the justices wanting to stake out a position giving states that sort of strong power [to strike candidates from their ballots] over an issue that’s not clear-cut.” 

Audio from the oral arguments before the Supreme Court is available to livestream online from the court’s website.