By Wanjiru Njoya

In the run-up to the inauguration of Donald J. Trump as 47th president of the United States, political activists, frustrated by the fact that Kamala Harris lost the election, have attempted to revive the argument that the Fourteenth Amendment precludes Trump from taking office. They rely on a decision of the Colorado Supreme Court concerning the events of January 6, 2021, where the court stated that, “the [Colorado District] court found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three [of the Fourteenth Amendment].” The Colorado Supreme Court ruled that:

Despite the Colorado decision having been subsequently reversed by a unanimous United States Supreme Court in Trump v. Anderson, 601 U.S. 100 (2024), the lawfare activists still feel they have an arrow left in their Fourteenth Amendment quiver. They depict Trump’s Supreme Court victory as largely dicta with no legal force. They clutch at the straws thrown by the Court’s liberal members, who suggested that the majority had gone too far in expressing a view on the role of Congress in upholding the Fourteenth Amendment (that is, activists argue that the Supreme Court dicta on this point should not be read as part of its binding decision).

In this vein, the New York Times reported that, “The court’s three liberal members — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — expressed frustration at what they said was the majority’s needless overreach in a joint concurring opinion.” The liberal members said that the majority had needlessly chosen to “decide novel constitutional questions to insulate this Court and petitioner from future controversy,” and that, “In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed.” The liberal judges went on to add that:

Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oath breaking insurrectionist from becoming President. Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision. Because we would decide only the issue before us, we concur only in the judgment.

Trump’s political opponents derive some comfort, however tenuous, from those barbed words. Paradoxically, the liberal members of the Supreme Court, who usually favor an activist judicial role, in this case called for judicial restraint—an approach that potentially creates scope for further scheming by Trump’s political enemies seeking to relitigate the events of January 6 as many times as possible. In a further paradox, the longer-term constitutional implications of the majority........

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