U.S. Supreme Court justices on Thursday appeared skeptical toward a judicial decision kicking former president Donald Trump off the ballot in Colorado for participating in an insurrection during the 2021 Capitol attack in a case with major implications for the Nov. 5 election.
The nine justices were hearing Trump’s appeal of ruling by Colorado’s top court to disqualify him from the state’s Republican primary ballot under the U.S. Constitution’s 14th Amendment, finding that he participated in an insurrection.
Section 3 of the 14th Amendment bars from holding public office any “officer of the United States” who took an oath “to support the Constitution of the United States” and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The justices grilled Jason Murray, representing four Republican voters and two unaffiliated voters who sued to keep Trump off the Colorado ballot.
Conservative Chief Justice John Roberts said that if the Colorado decision is upheld, other states will proceed with disqualification proceedings of their own for either Democratic or Republican candidates.
“And it will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence,” Roberts said.
“I think that the question that you have to confront is why a single state should decide who gets to be president of the United States,” liberal Justice Elena Kagan asked Murray. “This question of whether a former president is disqualified for insurrection, to be president again … it sounds awfully national to me.”
Congress has power to act: Trump lawyer
Roberts also told Murray that the whole point of the 14th Amendment was to restrict state power while also augmenting federal power.
“Wouldn’t that be the last place that you would look for authorization for the states … to enforce the presidential election process? That seems to be a position that is at war with the whole thrust of the 14th Amendment and very ahistorical,” Roberts told Murray.
Murray replied that state authority over elections is enshrined elsewhere in the Constitution.
The U.S. Constitution could disqualify former president Donald Trump from the 2024 election campaign because of his alleged role in the Capitol riot. Andrew Chang explains a rarely used section of the 14th Amendment and breaks down the arguments we’ll hear in ongoing court cases.
The justices questioned Trump’s lawyer Jonathan Mitchell over his arguments that Section 3 cannot be enforced by states absent congressional legislation and that presidents are not subject to Section 3.
Roberts asked Mitchell whether a state’s top elections official could disqualify a candidate who comes forward and says he took the oath mentioned in the provision and engaged in an insurrection.
“If the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office and even win election to office — and then see whether Congress lifts that disability after the election,” Mitchell said.
Questioned by liberal Justice Ketanji Brown Jackson, Mitchell also argued Trump is not subject to the disqualification language because a president is not an “officer of the United States.” Mitchell said such an officer would only be an appointed official of some kind.
The Supreme Court’s 6-3 conservative majority includes three justices appointed by Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Trump is running to become president again. Maine also has barred him from its ballot, a decision put on hold pending the Supreme Court’s ruling.
Primaries in Maine and Colorado are both scheduled for March 5.
Thomas hears case despite calls to recuse
Police set up barricades around the courthouse for security. Dozens of demonstrators gathered outside the white marble courthouse, some holding anti-Trump signs.
The case calls on the Supreme Court to play a central role in a presidential contest unlike any since its landmark decision that validated George W. Bush’s razor-thin victory over Democrat Al Gore in the 2000 election.
The plaintiffs who sued seeking to disqualify Trump are four Republican voters and two unaffiliated voters, backed by a liberal watchdog group.
Trump gave an incendiary speech to supporters in Washington on Jan. 6, 2001, telling them to go to the Capitol and “fight like hell” but also to protest “peacefully and patriotically.” He then for hours rebuffed requests that he urge the mob to stop.
“This was a riot. It was not an insurrection,” Mitchell told Jackson. “The events were shameful, criminal, violent, all of those things but did not qualify as an insurrection as that term is used in Section 3.”
Clarence Thomas, who has been on the top bench for 33 years, heard the case despite calls from Democrats like Sen. Dick Durbin of Illinois to recuse.
Thomas’s wife, Ginni, attended the rally Trump held shortly before thousands stormed the Capitol on Jan. 6, 2021, and she sent text messages to senior White House officials urging them to prevent a Biden win, including one in which she complained to Meadows that the election was a “heist.”
It was the first hearing with potential implications for Trump’s run for president and his desire to quash the criminal exposure he faces in indictments in four separate jurisdictions.
The Supreme Court has said that in the coming weeks it will review a charge of obstruction of an official proceeding, pertaining to three people charged in connection with the Capitol riot. Among the four counts special counsel Jack Smith has sought in the federal election interference case, Trump faces charges of conspiracy to obstruct an official proceeding as well as attempt to obstruct an official proceeding.
It’s also possible, though not guaranteed, that the Supreme Court will want to weigh in on the question of whether Trump has immunity from prosecution as a former president. Earlier this week, a D.C. appeals court rejected that idea.