(WASHINGTON) — The U.S. Supreme Court on Thursday appeared highly critical of a Colorado Supreme Court decision that would ban former President Donald Trump from the state’s 2024 GOP primary ballot under Section 3 of the 14th Amendment.
During more than two hours of oral argument in the historic case Trump v. Anderson, each of the court’s nine justices expressed skepticism that an individual state has the authority to deny a candidate for federal office from the ballot as an “insurrectionist.”
“It just doesn’t seem like a state call,” Justice Amy Coney Barrett said.
“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?” said Justice Elena Kagan.
While the court’s ultimate decision is not always clear based on the questions raised during a hearing, it appeared likely that a majority of the court is ready to reverse the Colorado decision and put an end to efforts nationwide seeking to disqualify Trump under the rarely used, 150-year-old constitutional provision.
Section 3 of the 14th Amendment was drafted after the Civil War to prevent former Confederates from holding positions across government. It reads no person who took an oath as an “officer of the United States” who then “engaged in insurrection” can hold an office “under the United States” in the future.
Only Congress, it adds, can remove the disqualification by two-thirds vote of both the House and Senate. It does not spell out who gets to decide when someone has “engaged in insurrection” or how. The nation’s highest court has never before examined the issue.
“Well, when you look at Section 3, the term insurrection jumps out. And the questions are: What does that mean? How do you define it? Who decides? Who decides whether someone engaged in it? What processes– as justice, what processes are appropriate for figuring out whether someone did engage in that?”Justice Brett Kavanaugh said.
The justices spent nearly the entire argument before a packed courtroom grappling with who enforces Section 3 and whether states have any authority to do so on their own.
“In this situation, a ruling from this court that affirms the decision below would not only violate term limits but take away votes of potentially tens of millions of Americans,” said Trump’s attorney Jonathan F. Mitchell.
While the counsel for Colorado voters challenging Trump’s eligibility repeatedly raised details of the former president’s efforts to overturn results of the 2020 election, the justices largely refrained from engaging with those facts or the merits of the Colorado ruling.
Instead, they zeroed in on the practical consequences of allowing each state to decide a presidential candidate’s eligibility under Section 3 and the unique role that the Constitution explicitly gives Congress in that amendment — namely, the right to remove an insurrectionist’s disability with a vote.
Justice Neil Gorsuch asked whether Section 3 was the only type of disqualification that could be removed by Congress.
“It’s the only one like that, right?” He asked.
Several justices voiced concern that chaos would ensue if each state could develop its own standard for “engaging in insurrection.”
“The question of who can enforce Section 3, with respect to a presidential candidate — the consequences of what the Colorado Supreme Court did, as some people claim, would be quite severe,” Justice Samuel Alito said.
“It would seem to me … if the Colorado position is upheld, surely there will be disqualification proceedings on the other side. Some of those succeed. Some of them will have different standards of proof. Some of them will have different views about evidence,” Chief Justice Roberts said.
On several occasions, the justices questioned whether the framers of the 14th Amendment had truly intended to give states more power in the aftermath of the Civil War when the federal government was trying to rein in former Confederate states.
History factored prominently in the debate, with even some of the court’s most liberal members referencing founding-era records to cast doubt on the idea that presidents and potential presidents were covered under Section 3.
“I guess my question is why the framers would have designed a system that would could result in this uniformity in this way when we have elections pending, different states suddenly saying you were eligible…,” said Justice Ketanji Brown Jackson.
The argument played out inside a court chamber shrouded in layers of extra security given the magnitude of the case. Outside the court, the scene was relatively quiet with little sign of widespread demonstrations or disruption.
The former president was not present in the chamber. But given the historic nature of the day, the wives of many of the justices were in attendance, as per tradition, as well as the Solicitor General of the United States Elizabeth Prelogar.
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