Introduction
On March 4, 2024, a unanimous bench of the U.S. Supreme Court reversed a Colorado Supreme Court ruling removing former President Donald Trump from the state’s Republican primary ballot as an oath-breaking insurrectionist under section three of the Fourteenth Amendment. Foreshadowed by a tendentiously one-sided oral argument and a pervasive prejudgment by the chatting classes, the actual result of Trump v. Anderson was a “dog bites man” moment of sorts. Few were surprised that Trump would end up on Colorado’s primary ballot or that the Court would resolve the case in a manner precluding other states from exercising section three in their nominating contests.
The Court’s refusal to upend what at the time had been expected to be a (hardly relished) Trump/Biden rematch was unsurprising. But the actual arguments advanced by the per curiam arrived as if out of left field. Its anonymous pen avoided the modalities of constitutional argumentation that are often thought to be characteristic of the Roberts Court. There was, for example, no totalizing reliance on constitutional text nor any extended exegesis of original public meaning. The per curiam also swerved around the two main arguments tendered by the petitioning former President. Instead, it gave unanticipated witness to the obdurate prepotency of consequentialism and constitutional structure as instruments of Supreme Court decisionmaking.
While no one is proclaiming the death of originalism, the per curiam’s abrupt and unsought deviation from familiar methodological grooves raises questions about what exactly it held and why it took the path it did. Piercing through the carapace of its result foreshadowed, did the per curiam’s unusual justifications align with the balance of its jurisprudence? What do the reasons it elevates tell us about the role of the Court in the larger constitutional scheme, and in particular its uneasy democratic processes?
Taking the Anderson per curiam on its own terms, this Comment untangles and evaluates three distinct structural logics upon which the Court’s holding rests. I begin in Part I with a capsule summary of the case’s factual context. I also offer a careful account of its merits arguments. Parts II through IV then closely evaluate three structural arguments underpinning its holding. These are logics of (roughly speaking) federalism, the separation of powers, and democracy. Without offering a gloss on section three, which has already been the subject of extensive, worthwhile historical work, I isolate specific justifications developed in the Anderson per curiam — and then subject them to careful scrutiny.
More briefly than the topic warrants, I also bring the new regime for presidential disqualification into conversation with the companion regime for presidential immunity, newly minted for the same former President less than four months later. The two opinions are related, not only because they both concern the appropriate mechanism for addressing criminality by “apex” elected officials. Both judgments notionally rest on a consequential logic of democratic defense — but both judgments inflict serious harms on the project of enduring democratic rule. It is the aim of this Comment to start to measure the bounds of that damage.
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* Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School; thanks to Nick Stephanopoulos and Samuel Issacharoff for incisive comments; to the Editors at the Review for their excellent and timely substantive feedback and editing, under a very tight schedule; to Erika Doane and Miranda Coombe for research assistance up front; and to the Frank J. Cicero Fund for research support.
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