Washington — The Supreme Court on Thursdayin a blockbuster case over whether former President Donald Trump can be excluded from Colorado’s primary ballot over his actions surrounding the attack on the Capitol on Jan. 6, 2021.
The case hinges on, 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.
A group of voters in Colorado challenged Trump’s eligibility for the White House, citing Jan. 6. A divided Colorado Supreme Courtthat Section 3 meant Trump was ineligible for office and thus could not appear on the state’s primary election ballot. The court paused its ruling so Trump could appeal to the U.S. Supreme Court.
During oral arguments in the case,, lawyers for both sides and the Colorado secretary of state laid out their positions before the nation’s highest court. Many of the justices seemed skeptical of the idea that states could enforce Section 3 like Colorado did and appeared poised to let Trump remain on the ballot.
Here are five key takeaways from the oral arguments:
Roberts calls Colorado voters’ position “ahistorical”
An exchange between Chief Justice John Roberts and Jason Murray, a Colorado attorney appearing on behalf of the voters who brought the case, seemed to encapsulate the justices’ concerns with upholding the Colorado ruling.
“The whole point of the 14th Amendment was to restrict state power,” Roberts said. “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? That seems to be a position that is at war with the whole thrust of the 14th Amendment and very ahistorical.”
Murray pointed to Article II of the Constitution, saying it gives states “broad power” to run their elections. Roberts countered that “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.”
The chief justice warned that a ruling finding states can enforce Section 3 on their own would open the door to a partisan tit-for-tat that would place the presidential election in the hands of a narrow sliver of states.
“If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side, and some of those will succeed,” he said.
“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,” Roberts continued. “That’s a pretty daunting consequence.”
Murray replied: “The fact that there are potential frivolous applications of a provision is not a reason —”
“Well, no, hold on. You might think they’re frivolous, but the people who are bringing them may not think they are frivolous,” Roberts interjected. “‘Insurrection’ is a broad term. And if there’s some debate about it, I suppose that will go into the decision and then 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 kind of go through which states are valid and which states aren’t?”
Murray said: “There’s a reason Section 3 has been dormant for 150 years. And it’s because we haven’t seen anything like Jan. 6 since Reconstruction. Insurrection against the Constitution is something extraordinary.” His response prompted Roberts to remark that he was “avoiding the question.”
There was little discussion about Jan. 6 and whether Trump “engaged in insurrection”
Though it was Trump’s conduct surrounding the Jan. 6 assault on the U.S. Capitol that led the Colorado Supreme Court to deem him ineligible under Section 3, little time during the two hours of arguments was devoted to the attack and whether Trump incited the mob of his supporters, as the voters allege.
Jonathan Mitchell, a Texas-based lawyer who argued on behalf of Trump, denied that the events of Jan. 6 constituted an insurrection, as the Colorado Supreme Court concluded.
“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.”
Justice Brett Kavanaugh noted that Congress has enacted a mechanism to prohibit insurrectionists from holding office: The Insurrection Act, which was passed decades before the 14th Amendment was ratified in 1868.
“That tool exists, you agree, and could be used against someone who committed insurrection,” he told Murray.
While Trump is being criminally prosecuted for his alleged efforts to subvert the transfer of power after the 2020 presidential election, he is not charged with violating the Insurrection Act. The former president has pleaded not guilty to the four charges brought against him by special counsel Jack Smith.
The justices questioned whether Section 3 applies to presidents
The main argument advanced by Trump’s lawyers is that Section 3 does not apply to him as a former president nor to the office of the presidency, which he is seeking. Their position rests on two phrases in the clause: “office … under the United States” and “officer of the United States.”
Neither the president nor presidency should be covered by those two phrases, Mitchell argued. He also asserted in court filings that the presidential oath to preserve, protect and defend the Constitution is different from an oath to “support” it, which is the oath described in Section 3.
“You have a list, and ‘president’ is not on it,” Justice Ketanji Brown Jackson told Mitchell.
She raised a similar point later to Murray, questioning why the drafters of Section 3 did not “put the word ‘president’ in the very enumerated list in Section 3.”
Acknowledging that the text of the provision may be ambiguous as to whether it covers the president and presidency, Jackson questioned, “Why would we construe it … against democracy?”
Jackson later said the history of the 14th Amendment provides the reason for why the presidency may not be covered by Section 3.
“The pressing concern, at least as I see the historical record, was actually what was going on at lower levels of the government, the possible infiltration and embedding of insurrectionists into the state government apparatus and the real risk that former Confederates might return to power in the South via state-level elections either in local offices or as representatives of the states in Congress,” she told Mitchell. “And that’s a very different lens.”
The voters had argued in filings that Trump’s argument amounts to a loophole available only to him: Because he did not serve in public office before winning the White House in 2016, Trump is the only former president besides George Washington who has never before sworn an oath to “support” the Constitution.
Mitchell told Justice Sonia Sotomayor that his argument that the president is excluded from the phrase “officer of the United States” is the stronger one, though she pushed back.
“A bit of a gerrymandered rule, isn’t it, designed to benefit only your client?” Sotomayor said.
She continued: “Just so we’re clear, under that reading, only the petitioner is disqualified because virtually every other president except Washington has taken an oath to support the Constitution, correct?”
A 155-year-old case is raised repeatedly
One of the most dominant lines of questioning from the justices involved whether Section 3 is “self-executing,” or whether it requires legislation from Congress to be enforced.
Trump’s lawyers pointed to a 1869 decision from Chief Justice Salmon Chase in a case involving a criminal defendant named Caesar Griffin. Chase’s opinion is considered the first major judicial opinion on Section 3. In it, he determined that the provision was not self-executing and could only be enforced through an act of Congress.
But Chase was sitting as a circuit court judge in Virginia at the time he issued his opinion, so it is not Supreme Court precedent. He also reached the opposite conclusion in the treason prosecution against Jefferson Davis, the former president of the Confederacy. Serving as a circuit judge in that instance as well, Chase said he agreed with Davis’ lawyers that Section 3 “executes itself.”
Kavanaugh argued that Chase’s opinion in the Griffin case is still relevant for determining the original meaning of Section 3.
“It’s by the chief justice of the United States a year after the Fourteenth Amendment,” he said. “That seems to me highly probative of what the meaning or understanding of that language, otherwise elusive language, is.”
Kavanaugh later said it could be argued that Griffin’s case is the reason why Section 3 has so seldom been used. Until the Colorado Supreme Court ruling, it had never been used to disqualify a presidential candidate.
“I think the reason it’s been dormant is because there’s been a settled understanding that Chief Justice Chase, even if not right in every detail, was essentially right, and the branches of the government have acted under that settled understanding for 155 years,” he said.
Kagan hints at potential consensus over “broader principle” of state and federal power
Roberts’ concerns about states having the power to decide whether a candidate is ineligible under Section 3 were echoed by his colleagues on the conservative and liberal wings of the bench.
Justice Elena Kagan, one of the court’s three liberal members, seemed to offer a path for the justices to reach consensus in a pair of exchanges with Murray.
“Maybe put most boldly, 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,” she said. “In other words, this question of whether a former president is disqualified for insurrection to be president again is, you know, just say it, it sounds awfully national to me. So whatever means there are to enforce, it would suggest that they have to be federal, national means.”
Kagan continued: “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?”
Later, Kagan pointed to a case from 1983 known as Anderson v. Celebrezze, in which the court ruled that an Ohio filing deadline for independent candidates was unconstitutional.
“We said, in fact, states are limited in who they can take off a ballot, and that was a case about minor party candidates, but the reason was that one state’s decision to take a candidate off the ballot affects everybody else’s rights. And we talked about the pervasive national interest in the selection of candidates for national office. We talked about how an individual state’s decision would have an impact beyond its own borders,” Kagan said, asking Murray why the same principle shouldn’t apply in the Trump case.
Murray countered that the Anderson case dealt with issues under the First Amendment. In the Colorado case, he said, “there’s no real First Amendment problem, and a state is just trying to enforce an existing qualification that’s baked into our constitutional fabric.”
“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?”