The Supreme Court appeared very wary Thursday of the state of Colorado’s effort to kick former President Trump off its primary ballot, and questioned how a ruling in its favor would not lead to an “unmanageable situation” for the nation.
The court is considering for the first time the meaning and reach of Article 3 of the 14th Amendment, which bars former officeholders who “engaged in insurrection” from holding public office again.
Colorado argued that because they determined Trump’s behavior related to 2020 election interference – culminating with the Jan. 6 Capitol riots – amounted to an “insurrection,” he should be removed from the state’s ballot.
In more than two hours of spirited, often tense arguments, the justices asked tough questions of both sides about whether the president or a presidential candidate is exempt from the constitutional provision adopted after the Civil War.
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Justice Brett Kavanaugh spoke for colleagues when saying they were confronting “difficult questions.”
“When you look at Section 3, the term insurrection jumps out,” Kavanaugh said. “And the questions are, what does that mean? How do you define it? Who decides? Who decides whether someone engaged in it?”
Kavanaugh noted the courts looked at these questions in an 1869 decision, known as “Griffin’s case,” which found that an act of Congress was necessary to enforce the 14th Amendment’s ban on insurrectionists holding federal office.
“These are difficult questions, and you look right at Section 5 of the 14th Amendment… and that tells you Congress has the primary role here,” Kavanaugh said. “I think what’s different is the processes, the definition, who decides questions really jump out at you when you look at Section 3.”
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Many of the queries focused on whether state courts or elected state officials can unilaterally enforce constitutional provisions and declare candidates ineligible for public office – so-called “self-executing” authority – or is that exclusively the jurisdiction of the U.S. Congress.
Chief Justice John Roberts questioned Colorado’s attorney Jason Murray about the “consequences” of the state’s position.
“What do you do with consequences of your position? There will be disqualification proceedings on the other side, and some will succeed in very quick order, I would expect that a goodly number of states will say whoever the Democrat is, you’re off the ballot,” he said. “It would then come down to a small number of states deciding the election. That’s a pretty severe consequence.”
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Justice Samuel Alito pressed Murray to “grapple” with “what some people have seen as the consequences of the argument that you’re advancing, which is that there will be conflicts in decisions among the states.”
“The different states will disqualify different candidates. But I’m not getting a whole lot of help from you about how this would not be an unmanageable situation,” Alito said.
Justice Elana Kagan questioned, “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?
But Kagan also questioned whether it was “contrary” to say the rule applies to other public office seekers but does not apply to Trump.
Justice Ketanji Brown Jackson zeroed in on the text of Section 3 and questioned why the president was not listed specifically.
The 14th Amendment, Section 3 of the Constitution states, “No person shall… hold any office… under the United States… who, having previously taken an oath, as a member of Congress, or as an officer of the United States… to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
“Why didn’t they put the word president in the very enumerated list in Section 3?” Brown asked Murray. “The thing that really is troubling to me is I totally understand your argument, but they were listing people that were barred and president is not there. And so I guess that just makes me worry that maybe they weren’t focusing on the president.”
Murray responded with a reference to history:
“This came up in the debates in Congress over Section 3, where Robert Johnson said, ‘Why haven’t you included the president and vice president in the language?’ And Sen. Murrell responds, ‘We have. Look at the language “any office under the United States.”‘”
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“Yes, but doesn’t that at least suggest ambiguity?” Jackson responded, questioning why such ambiguity would be addressed in a way that goes against democracy.
A ruling in the case is expected in the coming weeks. Colorado’s presidential primary takes place on Tuesday, March 5.