- Donald Trump was declared ineligible to appear on the Colorado ballot on December 19 and his appeal will be heard on Thursday
- The decision marked the first time in history that Section 3 of the 14th Amendment has been used to disqualify a presidential candidate
- Supreme Court justices will hear arguments from both sides about whether Trump is ineligible to be president again and can be kept off the 2024 ballot
The Supreme Court heard oral arguments Thursday in a case that will decide whether former President Donald Trump can be kicked off the Colorado ballot in 2024, with justices evincing deep skepticism about courts and states intervening in the matter.
Arguments ranged from technical parsing over whether the president is an ‘officer’ of the U.S., the status of Confederates after the Civil War, whether January 6 was a ‘riot’ or an ‘insurrection’ and whether Trump was involved in it.
Justice Elena Kagan, who was nominated by President Barack Obama, asked the key political question more than an hour into arguments.
She indicating that liberals, not just conservatives, on the court had concerns about the impact of ruling against Trump.
‘Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?’ Justice Kagan asked.
Chief Justice John Roberts also raised concerns about the court ‘deciding whether there was an insurrection’.
A group of voters in Colorado is seeking to bar Trump from the ballot under a key provision in the 14th Amendment which prohibits ‘insurrectionists’ running for office.
Trump has blasted the Colorado decision as a violation of his rights as a candidate. Unlike in some of his other high profile cases, he opted not to attend in person, instead hitting it from Mar-a-Lago with plans to travel to Nevada.
It was the high court’s first intervention into 2024, in an election cycle where lower courts have already played a prominent role, but where it’s decisions on the ballot and Trump’s ‘immunity’ claim could shape the election results.
Arguing the case brought by Colorado voters who brought the suit is Jason Murray. Texas lawyer Jonathan Mitchell is arguing Trump’s case before the 6-3 conservative court.
First up was Mitchell, who got an early query from Chief Justice John Roberts, who wanted to know if someone could come into a state secretary of state and say they want to run for office and admit ‘I participated in an insurrection and I want to be on the ballot.’
According to Mitchell, the state official couldn’t bar the person – and that it would be up to Congress to decide whether to grant a waiver through a vote.
Section 3 on its face bans an insurrectionist only from holding office,’ he said.
‘There’s a whole lot of examples of states relying on Section 3 to disqualify insurrectionists for state offices,’ Justice Sonia Sotomayor weighed in.
Justice Samuel Alito asked a question that suggesting that he doubts whether Congress could even enact legislation that would prohibit insurrectionists from running for office, since it is not among the Constitution’s qualifications for officeholders.
‘Section 3 refers to the holding of office, not running for office,’ he said. ‘Wouldn’t that be adding an additional qualification for running for president?’ Alito asked.
‘What is the sum total of ways that Section 3 can be enforced? That somebody out there can say, yes there’s been a former president who engaged or led or who participated in an insurrection … What is the sum total of ways that that enforcement can happen?’ asked Justice Elena Kagan.
Mitchell replied that it was up to Congress to act.
That was just part of the minutia justices probed. Another matter is whether the office president counts as one of those where taking part in insurrection would bar them from holding office.
Justice Ketanji Brown Jackson asked Mitchell: ‘Are you arguing: office of president should not be considered one of the barred offices?’ When Mitchell replied that he wasn’t, Brown asked him: ‘Why? It seems to me that you have a list and president is not on it.’ The list stated in the text lists offices including senator, representative, and even presidential elector.
Justices went back and forth with Mitchell over the Griffin case, where a black defendant, Caesar Griffin, argued his ‘shooting with intent to kill’ conviction should be overturned because the judge who oversaw the case was a Confederate.
There was even high-stakes hair-splitting on the difference between officer of the United States and offices under the United States, the difference being whether or not they were appointed.
Mitchell conceded his argument was stronger under one scenario than the other.
‘One would think of all offices, the presidency would be the one you’d want to keep out the Confederate insurrectionists,’ he said.
Justice Sotomayor asked about if there were other ways a state might keep a candidate off the ballot.
‘Are you setting up so that if some President runs for a third term, that a state can’t disqualify him?’ she asked, due to the 22nd Amendment’s term limits on presidential tenure.
‘Of course, they can disqualify him from the ballot because that is a qualification. That is categorical,’ Mitchell responded.
Justice Jackson asked whether Mitchell’s brief argued that there was an insurrection.
‘We never accepted or conceded in our opening breach that this was an insurrection,’ Mitchell said.
He said there was no such organized effort.
‘For an insurrection there needs to be an organized, concerted effort,’ he said,
‘A chaotic effort to overthrow the government is not an insurrection?’ Jackson asked.
‘This was a riot. It was not an insurrection. The events were shameful,’ Mitchell added.
When it was Murray’s turn to face the nine justices, Kagan asked about the practical implications of Colorado making a decision that could impact the entire election.
She wanted to know ‘Why a single state gets to decide who should be president of the United States.’
She raised a scenario where a battleground state like Michigan were to kick Trump off the ballot.
‘That seems quite extraordinary, doesn’t it?’ she asked him. Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?’
Murray responded that it was in fact a federal question that the Supreme Court would decide. He said other states ‘would still have to determine’ how their own states would be affected.
Justice Barrett, who was nominated to her post by Trump, appeared to agree with the pointed question. ‘Really it’s going to have as Justice Kagan said the effect of Colorado deciding,’ she said.
The chief justice asked Murray one question which revealed a reluctance to have the high court get into adjudicating what constitutes in insureciton.
‘Eventually what we would be deciding whether there was an insurrection when one president did something as opposed to when somebody else did something else. And what do we do? Do we wait until near the time of counting the ballots and sort of go through which states are valid and which states aren’t?’ Roberts asked.
‘This court can make clear that an insurrection against the Constitution is something extraordinary,’ Murray responded.
Jackson also asked Murray a skeptical question, wanting to know ‘why the framers would have designed a system which could have resulted in dis-uniformity this way?’
Kavanaugh wanted to know ‘about the idea we should think about democracy’ and ‘letting the people decide.’
‘Your position has the effect of disenfranchising voters to a significant degree,’ he told Murray.
Murray had an answer ready. ‘The reason that we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t give him another chance.’ He said the post-Civil War clause was put in so that someone couldn’t wreck the democracy ‘from within.’
Trump was declared ineligible to appear on the Colorado ballot on December 19 and his appeal against the state’s Supreme Court’s decision will be heard on Thursday.
Time and again, Murray used his time to blast at Trump for engaging in insurrection.
‘What we have here is an insurrection that was incited in plain sight,’ he said. But Justice Samuel Alito interjected that was ‘not really answering my question.’
The decision marked the first time in history that Section 3 of the 14th Amendment has been used to disqualify a presidential candidate. The Civil War-era rule states that people who participate in an insurrection are ineligible for office.
The highest court could even rule if the January 6 riot was an insurrection when a mob stormed the US Capitol to protest the election that saw Joe Biden beat Trump in 2020.
The Supreme Court will decide if Trump should be removed from the Colorado ballot and if similar attempts in other states are valid.
The Republican politician, 77, is the likely frontrunner to challenge Biden, 81, in the upcoming general presidential election in November.
His case is moving much faster than usual in scheduling arguments and there is pressure for a decision to be reached before March 5. This is when voters in 15 states, including Colorado, cast their ballots in the Republican primaries.
Trump’s name is currently on the Colorado ballot ahead of any Supreme Court. Maine also looked at removing Trump from its ballot but that move has also been paused.
It is based on a Civil War-era Constitutional amendment that bans anyone who has ‘engaged in insurrection or rebellion’ from holding federal office but this has never been used to disqualify a candidate for president.
The 14th Amendment has been around since 1868, but the Supreme Court has never before considered Section 3, known as the insurrection clause.
Both sides are pointing to historical clues to argue for their reading of the provision, including how it was interpreted at the time of its adoption.
The lawyers will reference arguments made 150 years ago by Salmon Chase, a member of Abraham Lincoln’s Cabinet who Lincoln appointed to the Supreme Court in 1864.
Chase, in December 1868, ruled on Section 3 of the 14th Amendment – which had only been enacted in July of that year.
Section 3 was designed in the aftermath of the Civil War to prevent Confederates from being elected.
‘No person 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, who … shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,’ it states.
Chase ruled Jefferson Davis, the defeated Confederate president, should not face prosecution for treason.
He argued Section 3 – blocking Davis from holding office – was a form of punishment, and therefore barred any additional criminal prosecution.
At the time, Chase, formerly the Republican governor of Ohio, was toying with running for president as a Democrat, and hoping to appeal to Davis’s Democrat colleagues.
A year later, Chase issued an opposing decision, when faced again with the question of Section 3.
He was asked to rule whether a black man, Caesar Griffin, should have his conviction for ‘shooting with intent to kill’ overturned because the judge who presided over his case was a Confederate.
In the Griffin case, Chase ruled that Congress needed to weigh in – largely because he feared the precedent that would be set by voiding all Confederate made judgements.
Trump’s lawyers argue now that the Griffin case shows a state cannot use Section 3 as a means of disqualifying someone.
In their brief, they argue that the Griffin case helps confirm ‘congressional enforcement legislation as the exclusive means for enforcing Section 3.’
The argument is one of several they present to say that Colorado’s Supreme Court overstepped the mark. They claim Trump’s conduct at the time of January 6 did not amount to insurrection.
Colorado’s Supreme Court acknowledged it was aware of the magnitude of its December ruling.
‘We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach,’ the justices said.
While Trump’s lawyers claimed it had ‘unconstitutionally disenfranchised millions of voters in Colorado’ and could lead to millions more in the US.
The former president’s claims have also been backed by the chief legal officers of 27 states.
They said the Colorado ruling would lead to ‘widespread chaos.’ The attorney generals wrote: ‘Most obviously, it casts confusion into an election cycle that is just weeks away.
‘Beyond that, it upsets the respective roles of the Congress, the States, and the courts.’
Trump is not expected to attend the hearing to hear the arguments on Thursday.
The Supreme Court could also be ruling on another Trump case after a federal appeals court rejected his claim of presidential immunity.
It ruled he could be prosecuted on charges relating to plotting to overturn the 2020 election. There is a deadline of Monday to get the Supreme Court to pause this ruling.