After a Supreme Court decision released Monday that was disappointing for many in allowing Donald Trump to appear on the ballot this year in Colorado after all, some experts noted that the nation’s highest court had not challenged earlier court decisions deeming Trump an insurrectionist for Constitutional law purposes.
The underlying challenge behind the new Supreme Court decision targeted Trump appearing on presidential election ballots this year on the basis of his argued involvement in the early 2021 attack on the Capitol via incitement. The attack was broadly spurred by lies tracing to the now former president of a stolen election — lies he still propagates. Relatedly, multiple courts in Colorado held Trump to be subject to the Constitutional references in the 14th Amendment to individuals involved in insurrection, though those courts diverged in applying accompanying restrictions on holding office to Trump’s current pursuit of the presidency.
“Yes the Supreme Court ruled for Trump based on only Congress having the power to enforce the 14th amendment,” legal analyst Norm Eisen said. “But just as important as what they did is what they didn’t do[.] They did NOT expressly challenge that he was an insurrectionist—& the concurrence emphasizes that finding.”
Neal Katyal, who was once acting Solicitor General of the United States, made similar observations.
“At the same time, remember that the Supreme Court’s decision today did not do what Donald Trump had asked: clear him of insurrection,” the lawyer wrote on X, the platform formerly called Twitter. “The Colorado court found that he so was, and Trump had an entire section of his SCOTUS brief arguing he was peaceful on 1/6. The Court didn’t do what he asked; it did not clear him.”
Notably, some Democrats — including Rep. Jamie Raskin (Md.) — have actually proposed legislation that would establish a specific method of enforcing (through courtroom procedures) the provisions of the Constitution’s 14th Amendment that drove this challenge to Trump’s candidacy. It wasn’t enacted.
