For varying reasons, justices on both sides of the aisle expressed concern about letting states use the 14th Amendment to bar Donald Trump from the ballot
Supreme Court justices offered a window into their thinking Thursday as they consider Donald Trump's eligibility for the 2024 presidential race. The unprecedented case is being expedited after Colorado barred him from its Republican primary ballot, citing the Constitution's "insurrection clause."
The question of whether Trump can hold office again hinges around how the Supreme Court chooses to interpret a two-sentence section of the 14th Amendment, which states that if an "officer of the United States" has engaged in an insurrection, they are ineligible to hold office.
Every word in the insurrection clause is being dissected as Trump's legal team argues that he is not an "officer" of the United States, his actions cannot be characterized as an "insurrection," and that states are not allowed to enforce Section 3 of the 14th Amendment without authorization from Congress.
14th Amendment, Section 3
"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, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability."
During Thursday's oral arguments, Justice Sonia Sotomayor expressed skepticism toward Trump's logic that the U.S. president does not count as an officer of the United States. “Bit of a gerrymandered rule, isn’t it?” she asked Trump's lawyer, Jonathan Mitchell. “Designed to benefit only your client?”
Sotomayor emphasized that under that line of thinking, Trump — who held no public office before president — would be exempt from the insurrection clause, but most presidents would not be, since they had previously sworn an oath as members of Congress.
Justice Ketanji Brown Jackson seemed to disagree with Sotomayor, later saying that she struggles to imagine "president" being left off the list of barred offices by accident, and that she can't be certain the framers of Section 3 wrote it with the office of president in mind.
During the arguments, several justices expressed concern that if states are permitted to decide who is on the presidential ballot, it could open a floodgate of politically motivated decisions in the future. Jason Murray, who is representing Colorado voters in the case, responded by saying that Section 3 of the 14th Amendment has been "dormant" for 150 years because insurrection is so rare, and that it's not likely to become an issue each election cycle.
Some justices pushed back on that point a little bit, saying that the insurrection argument is vaguely defined and could be abused, to which Murray urged the court to write an opinion that emphasizes the high threshold for something to be considered "insurrection."
Chief Justice John Roberts, a frequent swing voter on the court, told Murray that the 14th Amendment aimed to limit states' power, not increase it. “That seems to be a position that is at war with the whole thrust of the 14th Amendment and very ahistorical,” he said. Justice Elena Kagan, a liberal, also expressed some uncertainty about whether states' varying interpretations of the law should be allowed to sway a national election.
Murray responded to those concerns by saying that the Constitution generally grants states broad power to decide how their elections are run, and that it should be up to states to determine how their electors are assigned.
Justice Brett Kavanaugh asked Murray to explain why Trump should be considered an insurrectionist if he has not been convicted of insurrection, arguing that the most concrete way to assign that label is through federal prosecution. Murray argued that in Civil War times, insurrectionists were not always held criminally liable but were undeniably fighting against the Union.
Kavanaugh also suggested that barring Trump from the ballot could be seen as undemocratic by taking away the voice of his supporters. Murray rejected the assertion, saying that the insurrection clause was written expressly to protect democracy from people who have proven capable of dismantling it "from within."
On the whole, the justices' pointed questions during two hours of arguments on Thursday forewarned of a final opinion in Trump's favor.
The Supreme Court's case centers around a Dec. 19 decision by the Colorado Supreme Court, which ruled that the 14th Amendment disqualifies Trump from being president due to his actions leading up to the Jan. 6, 2021, Capitol riot, and therefore "it would be a wrongful act" under the state's election code to list him as a candidate on the presidential primary ballot.
Roughly one week after the Colorado court's ruling, Maine also disqualified Trump from appearing on its presidential primary ballot. Maine Secretary of State Shenna Bellows, a Democrat, issued that ruling, similarly citing the 14th Amendment.
"The U.S. Constitution does not tolerate an assault on the foundations of our government," Bellows wrote in the 34-page decision, which was suspended until the Supreme Court rules on the matter.
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Cases challenging Trump's candidacy have been filed in numerous states, to mixed results. The Michigan Supreme Court declined to reconsider a Court of Appeals decision that allowed Trump to remain on the primary ballot, and California’s Democratic secretary of state also declined efforts to remove Trump from its ballot.
The Supreme Court's ruling on the issue will set a precedent for states to follow.
In August, Trump was indicted on four criminal counts by a federal grand jury investigating the Jan. 6, 2021, Capitol riot and other efforts to overturn the 2020 presidential election. He was charged with one count each of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights.
While Trump has not yet gone to trial on those charges, a House select committee investigating the Capitol riot previously concluded that Trump was responsible for the events of Jan. 6.
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