Tag Archives: Colorado
14th Amendment Disqualification Decision Saves Trump but Damages the Supreme Court

Amherst professor Austin Sarat discusses the U.S. Supreme Court’s decision in Trump v. Anderson, where the Court ruled that Donald Trump could not be disqualified from appearing on the ballot under Section 3 of the 14th Amendment, emphasizing the decision’s implications for the Court’s prestige and internal consensus. Professor Sarat argues that the decision, while appearing unanimous, reveals deep divisions within the Court and suggests a failure by Chief Justice John Roberts to foster genuine unanimity or to protect the Court’s reputation, further criticizing the decision’s approach and its broader implications for the Court’s impartiality.

Trump Lawyer Reads the Constitution Like a Secret Code Requiring Decryption

Cornell Law professor Michael C. Dorf comments on last week’s Supreme Court oral arguments in Trump v. Anderson, in which the Justices seemed inclined to overturn the Colorado Supreme Court’s decision that disqualified Donald Trump from the state’s Republican primary under the Fourteenth Amendment for “engaging in insurrection.” Professor Dorf points out that the Justices’ questioning revealed a spectrum of potential rationales, from concerns over political retribution and the historical interpretation of Section 3 of the Fourteenth Amendment to structural arguments about federal versus state authority in determining a candidate’s eligibility for the presidency.

The Supreme Court’s Oral Argument in Trump v. Anderson: The Court’s Seeming Failure to Understand Some Basic Starting Points

UC Davis Law professor Vikram David Amar expresses concern over the quality of the Supreme Court’s oral argument in Trump v. Anderson, suggesting that the Justices’ questions failed to adequately address the complexities of the case and the constitutional principles at stake, particularly regarding the electoral college and interstate federalism. Professor Amar critiques the Court’s understanding of the electoral college system, arguing that the Justices’ apprehensions about the potential consequences of their decision overlook the inherent flexibility states have in appointing electors—a flexibility underscored by originalist constitutional interpretations and past precedents.

Rebel Yell: Why a Civil War Amendment Has Donald Trump Fighting to Keep His Name on the Presidential Ballot

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, examines the constitutional and political implications of a Colorado Supreme Court ruling that disqualified Donald Trump from running for president in 2024, based on his involvement in the January 6, 2021 attack on the U.S. Capitol. Mr. Falvy discusses the legal and factual issues that the U.S. Supreme Court will have to resolve in the case, and the potential impact of its decision on the country's future.

A Holiday Guide to Donald Trump’s Latest Cases at the Supreme Court

Cornell Law professor Michael C. Dorf points out that the U.S. Supreme Court faces critical decisions in two cases involving former President Donald Trump: one regarding his claim of absolute immunity against charges for his role in attempting to overturn the 2020 election, and the other concerning his eligibility for the Presidency under Section 3 of the Fourteenth Amendment. Professor Dorf argues that despite Trump’s legal team arguing for more time due to the complexity of the immunity case, the Court should expedite its review in both cases, given the urgency of presidential primaries and the weak nature of Trump’s claims, especially against the well-founded argument that he is ineligible under the Fourteenth Amendment due to insurrectionist activities.

The Dangerous Allure of Seemingly Inescapable Facts

Cornell professor Joseph Margulies comments on the U.S. Supreme Court’s decision in 303 Creative v. Elenis, in which the Court ostensibly held that a Colorado public accommodations law was unconstitutional as applied to website designer Lorie Smith because it compelled her to create artistic content in violation of her religious beliefs. Professor Margulies argues that the decision has potentially far-reaching implications that could return us to the days of Jim Crow—all because the stipulated facts in that case seemed (to some Justices) to lead to an inescapable result.

Trump Lawyer Jenna Ellis Snatches Shame from the Jaws of Redemption

Former federal prosecutor Dennis Aftergut comments on the public censure of Trump lawyer Jenna Ellis for her misrepresentations on Fox News and elsewhere regarding the outcome of the 2020 Presidential Election. Mr. Aftergut points out that now, thanks to Jenna Ellis, we have a discipline case on the record against a lawyer whose only misconduct was in misleading the public in the public square.

Can SCOTUS Prevent Free Speech from Swallowing Anti-discrimination Law?

Cornell Law professor Michael C. Dorf explains the options available to the U.S. Supreme Court as it considers 303 Creative LLC v. Elenis, which presents a clash between a Colorado law forbidding places of public accommodation from discriminating based on sexual orientation and a conservative Christian web designer’s objection to creating material that, she says, tacitly expresses approval of same-sex marriage. Professor Dorf points out that the Court could conclude that the case does not implicate free speech at all, but instead it will almost surely rule against Colorado, which could pose a potentially existential threat to anti-discrimination law.

Masterpiece Cakeshop Redux and the Homophobia Exemption from Anti-Discrimination Law

Cornell Law professor Sherry F. Colb comments on a case the U.S. Supreme Court recently agreed to review that presents the question whether the application of a state anti-discrimination law to a web designer who wishes to exclude same-sex couples from her services violates the Free Speech Clause of the First Amendment. Professor Colb predicts that the Court is likely to hold that the law as applied to the web designer does violate her free speech right—continuing a pattern of almost exclusively granting homophobes special First Amendment exemptions from anti-discrimination law.

Colorado Is Poised to Join the National Popular Vote Interstate Compact and Alter the Dynamics of the Movement

Illinois law dean and professor Vikram David Amar comments on the most recent development for the election reform movement known as the National Popular Vote (“NPV”) interstate compact plan—its imminent adoption by Colorado. Amar describes three reasons that Colorado’s adoption of the plan is such a significant step for the movement.

Attitudinal and Doctrinal Takeaways from the Masterpiece Cakeshop Case

Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein discuss two doctrinal issues raised in the Supreme Court’s majority and concurring opinions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Amar and Brownstein explain how Colorado could have reached the results it reached without disfavoring religion or religious liberty/equality at all, and they point out that the Court’s focus on the motives of the commissioners is unusual given the Court’s prior decisions on the role of invidious motives.

When Is an LGBTQ Rights Case Not About LGBTQ Rights? When It’s the Masterpiece Cakeshop Decision

Marci A. Hamilton— one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the Fox Leadership Program at the University of Pennsylvania—comments on the recent decision by the US Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Hamilton explains the scope and limitations of the Court’s decision and notes the significance of its narrow holding in that case.

Liberty and Equality Sometimes Require Tragic Choices, Just Not in Masterpiece Cakeshop

Cornell University law professor Michael C. Dorf explains why the Masterpiece Cakeshop case before the US Supreme Court—in which the Court will decide whether a baker may refuse to serve a gay couple based on his religious beliefs—does not present a difficult choice between liberty and equality. Rather, Dorf points out, the baker’s free speech claim in this case should be relatively easy to reject because a cake without an articulate message on it does not constitute the “speech” of the person who made it.

How First Amendment Speech Doctrine Ought to Be Created and Applied in the Colorado Baker/Gay Wedding Dispute at the Supreme Court

Illinois Law dean Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein point out that the US Supreme Court has no comprehensive doctrine on compelled speech under the First Amendment, especially as compared to its very nuanced doctrine on suppression of speech. Amar and Brownstein identify core elements that should comprise a comprehensive doctrine and call upon the Supreme Court to adopt similar guidelines when it decides an upcoming case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which a baker challenges a Colorado public accommodations law on First Amendment grounds, citing compelled speech. Without taking a position on how this dispute should be resolved as a matter of social policy, Amar and Brownstein argue that the doctrinal framework they describe does not support rigorous review in this case.

When a Conviction Is Reversed, Can the State Make the Defendant Prove Her Innocence?

Cornell University law professor Sherry F. Colb discusses a case before the U.S. Supreme Court that raises the issue whether a defendant whose conviction has been reversed may be required—without violating due process—to bring a separate civil action to prove her innocence in order to get a refund of the costs and fees imposed from her original conviction. Colb points out that the crux of the issue is whether the money sought to be returned is characterized as a refund or as compensation.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more