An effort to declare former U.S. President Donald Trump disqualified from running for the White House again was met with deep skepticism from the U.S. Supreme Court on Thursday, with justices across the ideological spectrum expressing doubts about its legal validity as well as concerns about the practical effects of removing him from the ballot.
The U.S. high court was reviewing a decision by the Supreme Court of the state of Colorado that found that under the 14th Amendment to the Constitution, Trump is ineligible to hold the office of presidency and, therefore, ordered him removed from Republican primary election ballots in the state.
A ruling in support of the Colorado decision would open the door to Trump’s being removed from other state primary ballots on similar charges and, if he is nonetheless chosen as the Republican Party’s presidential nominee, would raise questions about whether he can appear on general election ballots in November.
Associate Justice Elena Kagan, one of the members of the court’s liberal-leaning minority, framed a question that appeared to be troubling a number of her colleagues. “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?” she demanded.
Associate Justice Amy Coney Barrett, a member of the court’s conservative majority, echoed the concern, saying, “It just doesn’t seem like a state call.”
14th Amendment argument
The Colorado case is based on the 14th Amendment to the Constitution, a measure enacted in the wake of the Civil War more than 150 years ago. It was designed to bar former U.S. officials who betrayed an oath to defend the Constitution and joined the rebellious Confederate states from holding office or other positions of public responsibility in the future.
The relevant portion of Section 3 of the amendment holds that “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.”
The secretary of state of Colorado declared that because of Trump’s instigation of the assault on the Capitol on January 6, 2021, when a pro-Trump mob attempted to disrupt Congress as it certified Joe Biden’s victory in the 2020 presidential election, he was guilty of insurrection and therefore ineligible to hold the presidency.
Jonathan Mitchell, an attorney representing the former president, made a number of arguments in favor of striking down the Colorado court’s decision, often hinging on close readings of the text of the Constitution.
Mitchell insisted that Trump, despite serving for four years as president, has never been “an officer of the United States” within the meaning of the amendment, citing examples from the Constitution that appear to define officers as a group excluding the president.
He also argued that allowing Colorado to bar Trump from the ballot would be unlawful because the plain text of the amendment bars former insurrectionists only from serving in office, not from running for office. He pointed out that Section 3 of the amendment specifically states that a two-thirds majority of both houses of Congress can undo a former insurrectionist’s disqualification.
In a memorable moment in the more than two-hour proceeding, Mitchell argued that even if a presidential candidate admitted to being a former insurrectionist, it would be unlawful for a state to bar that person from the ballot because of the possibility that — between the election and the day of inauguration — Congress might act to remove the disqualification.
Jason Murray, arguing in support of the Colorado ruling, challenged the contention that Trump, despite being president, was never an officer of the United States. He argued that Mitchell’s reading of the amendment appears to make a “special exception” to the rules applicable only to Trump.
“There is no possible rationale for such an exemption and the court should reject the claim that the framers made an extraordinary mistake,” he said.
He also pushed back against the notion that a ruling in favor of the Colorado decision would lead to chaos as other states followed on with their own efforts to remove candidates from the ballot. Murray contended that the Supreme Court has the ability to adjudicate any such claims.
However, he faced aggressive questions from a number of justices on the panel who appeared to have concerns that the implications of a ruling in favor of Colorado would be large and unpredictable.
Chief Justice John Roberts questioned the fundamental assumptions underlying the Colorado court’s decision, pointing out that the 14th Amendment was designed to allow the federal government to place limits on states’ elections, not to allow individual states to take steps with nationwide impact.
“The whole point of the 14th Amendment was to restrict state power, right?” Roberts asked.
The chief justice went on to say that allowing the Colorado decision to stand would most likely provoke efforts across the country by partisans of both parties to have the rival party’s candidate removed from state ballots.
“That’s a pretty daunting consequence,” Roberts said.
Associate Justice Samuel Alito appeared to agree during his questioning of Colorado Solicitor General Shannon Stevenson, at one point warning of “unmanageable consequences” if the ruling is upheld.
“We’ve been told that if what Colorado did here is sustained, other states are going to retaliate, and they’re going to potentially exclude another candidate from the ballot,” Alito said. “What about that situation?”
A good day for Trump
Kermit Roosevelt, a law professor at the University of Pennsylvania, told VOA that, on balance, the upshot of the day’s argument was that the court appears disposed to rule in Trump’s favor, blocking Colorado from removing him from the ballot.
“I thought the argument went very well for Trump,” Roosevelt said. “The justices, just coming in, really seemed inclined to reverse. In a lot of the arguments, they seemed to be casting about for ways to do that.”
Roosevelt, who submitted an amicus brief to the court in favor of the Colorado ruling, said that in his view the court seemed to be “receptive” to the argument that “this isn’t something that one state can do on its own — that there’s a problem if states are trying to do this for a nationwide office.”
However, he said that if the court rules against Colorado on the basis of the potential consequences of allowing one state to block ballot access in a national election, that will not address the fundamental question of whether Trump committed insurrection and is therefore ineligible to hold the office of president.
Should Trump win the election, Roosevelt said, he might nevertheless find himself in court again confronting opponents who claim that he is not qualified to be inaugurated.