Washington — The Supreme Court seemed skeptical of the idea that Colorado can exclude former President Donald Trump from the state's primary ballot, with justices on both sides of the ideological spectrum warning during oral arguments of the consequences of ruling him ineligible for the White House.
The case, known as Trump v. Anderson, involves whether Trump is disqualified from holding the presidency again because of his conduct surrounding the Jan. 6, 2021, assault on the U.S. Capitol. The dispute puts the nine justices into new legal territory, and their opinion could have sweeping implications for the 2024 presidential race.
The case hinges on Section 3 of the 14th Amendment, which bars officials who have sworn to support the Constitution from serving in government if they engage in insurrection. The provision was enacted in 1868 to prevent former Confederates from holding office, and laid mostly dormant for more than 150 years.
The case arose out of the lawsuit a group of Colorado voters filed in the fall invoking Section 3. They voters claimed that Trump instigated the Jan. 6 attack as part of his efforts to subvert the transfer of presidential power after the 2020 election, and therefore is disqualified from holding public office or appearing on the state's primary ballot. The Colorado Supreme Court agreed in a 4-3 decision in December.
Trump's attorneys appealed to the U.S. Supreme Court, and the case came before the justices on Thursday.
Oral arguments in the Colorado Trump case
Over the course of two hours of oral arguments, the justices questioned the notion that states have the power to determine whether a presidential candidate is disqualified from holding office under Section 3 and thus exclude them from the ballot. Several seemed especially concerned about the nationwide implications of such a decision. At one point, Chief Justice John Roberts said that argument was "at war with the whole thrust of the 14th Amendment and very ahistorical."
"I would expect that a goodly number of states will say, whoever the Democratic candidate is, you're off the ballot. And others, for the Republican candidate, you're off the ballot, and it'll come down to just a handful of states that are going to decide the presidential election," the chief justice said. "That's a pretty daunting consequence."
Justice Brett Kavanaugh, one of the three justices appointed by Trump, suggested the court should be thinking about democracy and the right of the people to elect their preferred candidate when reaching a decision.
"Your position has the effect of disenfranchising voters to a significant degree," he said of the arguments advanced by lawyers for the voters.
Though the court broadly seemed wary of upholding the Colorado Supreme Court's decision that found Trump ineligible for the presidency, it was less clear on what grounds they would rule. A majority of the justices could agree that he is eligible for another term in office and the Colorado ruling should be reversed, but disagree over the reasoning.
Several members of the court questioned the scope of Section 3, and specifically whether it covers the former president and presidency. Trump's principle argument is that the disqualification provision does not apply to him.
"Why didn't [the drafters] put the word president in the very enumerated list in Section 3?" Justice Ketanji Brown Jackson asked, referring to the list of government positions specified in the provision. "They were listing people that were barred, and president is not there."
Acknowledging that the text of Section 3 may be ambiguous as to whether it covers the president and presidency, she questioned, "Why would we construe it ... against democracy?"
Little of the argument was spent debating whether Trump engaged in insurrection through his conduct on Jan. 6. Instead, the justices focused most of their questions on the enforcement issue and the scope of the provision.
Jonathan Mitchell, a Texas-based attorney for Trump, laid out his case first. He repeatedly pointed to an 1869 case involving a criminal defendant named Caesar Griffin, believed to be the first major judicial opinion on Section 3. Chief Justice Salmon Chase, serving as the circuit judge who heard cases in Virginia, held that the text of Section 3 was not self-executing and therefore could only be enforced through an act of Congress. Mitchell said Congress relied on that decision when crafting a law in 1870 that instructed federal officials to enforce Section 3.
Mitchell argued that Griffin's case, and Congress' subsequent action, shows that states don't have the authority to enforce Section 3 — and decide that a candidate is disqualified from office — unless Congress grants them the power to do so.
Justice Sonia Sotomayor pointed out that Chase's ruling did not set precedent for the Supreme Court, and noted that he contradicted his ruling in the treason prosecution of Jefferson Davis, the former president of the Confederacy.
Justice Elena Kagan asked what Mitchell's argument would be without Griffin: "Suppose that we took all of that away — suppose there were no Griffin case, and there were no subsequent congressional enactment — what do you then think the rule would be?"
Mitchell replied: "Just a matter of first principles, without Griffin's case, it's a much harder argument for us to make, because normally — I mean, every other provision of the 14th Amendment has been treated as self-executing."
Mitchell also argued that Section 3 cannot be used to deny Trump access to the ballot because it prohibits a person only from holding office, not running as a candidate or winning election. Section 3 also allows Congress to lift the disqualification for insurrectionists by a two-thirds vote, and Mitchell said states cannot declare a candidate ineligible for office when the possibility for receiving a congressional waiver still exists.
Later, under questioning from Jackson, Mitchell said the events on Jan. 6 did not rise to the level of "insurrection."
"For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence," he said. "This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all those things, but they did not qualify as an insurrection as that term is used in Section 3."
"That seems quite extraordinary, doesn't it?"
Jason Murray, a Denver lawyer appearing for the Colorado voters, urged the Supreme Court to uphold the Colorado ruling, arguing that Trump betrayed his oath to preserve, protect and defend the Constitution by inciting a violent mob to attack the Capitol in an attempt to stop the counting of electoral votes cast against him.
Justice Clarence Thomas asked Murray for historical examples of states disqualifying national candidates from the ballot under Section 3. Murray could point to only one — from 1868, when the governor of Georgia refused to certify results of a congressional election — and Roberts indicated that Murray's reading of states' power to enforce Section 3 ran against the rest of the 14th Amendment.
"The whole point of the 14th Amendment was to restrict state power," he said, pointing to several other provisions of the amendment. "On the other hand it augmented federal power under Section 5 — Congress has the power to enforce it. So wouldn't that be the last place that you'd look for authorization for the states, including Confederate states, to enforce, implicitly authorized to enforce the presidential election process?"
He continued: "The narrower power you're looking for is the power of disqualification, right? That is a very specific power in the 14th Amendment and you're saying that was implicitly extended to the states under a clause that doesn't address that at all."
Murray responded that Section 3 has not been used since the 1870s because "we haven't seen anything like Jan. 6 since Reconstruction," adding that "insurrection against the Constitution is something extraordinary."
Kavanaugh disagreed over why Section 3 has seldom been used: "I think the reason it's been dormant is because it's been settled understanding that Chief Justice Chase, even if not right in every detail, was essentially right, and the branches of government have acted under that settled understanding for 155 years. And Congress can change that … but they have not in 155 years, in relevant respects."
He also noted that Congress provided the mechanism for ensuring insurrectionists do not hold federal office when it passed the Insurrection Act in 1807, a law that Trump has not been charged with violating, Kavanaugh said.
"That tool exists, you agree, and could be used against someone who committed insurrection," he told Murray.
Kagan, one of the three liberal justices, said the question of a former president's eligibility for office is one with nationwide reach, and the means of enforcing a provision disqualifying that person should be federal.
"If you weren't from Colorado and you were from Wisconsin or you were from Michigan, and what the Michigan secretary of state did is going to make the difference between whether candidate A is elected or candidate B is elected, that seems quite extraordinary, doesn't it?" she said.
Kagan asked Murray why a single state should have the ability to make a determination about a presidential candidate's eligibility for office under Section 3 "not only for their own citizens, but for the rest of the nation."
"There's a broader principle there, and it's a broader principle about who has power over certain things in our federal system. And within our federal system, states have great power over many different areas. But there's some broader principle, that there are certain national questions where states are not the repository of authority," Kagan said. "Like, what's a state doing deciding who gets to, who other citizens get to vote for for president?"
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