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SCOTUS appears reluctant to keep Trump off CO ballot for insurrection, questioning the implications

“It now appears that it is possible for Chief Justice Roberts to secure a unanimous or nearly unanimous ruling of the Court against this dangerous theory,” said George Washington University Law Professor Jonathan Turley.

Published: February 8, 2024 11:25pm

U.S. Supreme Court justices of both conservative and liberal persuasions appeared reluctant during oral arguments to allow former President Donald Trump to be removed from the primary ballot in Colorado under the insurrection clause of the 14th Amendment, questioning the precedent it would set. 

On Thursday, the Supreme Court heard oral arguments in the case of Donald Trump v. Norma Anderson, in which the Colorado respondents have argued that the former president should be taken off the primary ballot because he allegedly incited an insurrection on Jan. 6, 2021. 

Republican and unaffiliated voters in Colorado brought the lawsuit. The Colorado Supreme Court had overturned a ruling of a lower court, deciding that under the Section 3 "insurrection clause" of the 14th Amendment, Trump was disqualified from holding the office of president. Trump appealed the ruling to the U.S. Supreme Court. 

Justices across the ideological spectrum appeared concerned in their questioning of the Colorado respondents’ lawyer on the legal reasoning for keeping Trump off the ballot and its implications nationwide. 

Chief Justice John Roberts said to the Colorado plaintiffs' lawyer, Jason Murray, that "other states may have different views about what constitutes insurrection." If "insurrection" is defined differently by various states, then “we’d have to develop rules for what constitutes an insurrection,” Robert said.  

If Colorado's ruling is upheld, then removing Trump from the ballot would, "In very quick order, I would expect, although my predictions have never been correct, 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," Roberts speculated

If this were to occur, then the presidential election would be determined by "just a handful of states," Roberts said. "That's a pretty daunting consequence," he added.  

Murray said that the Supreme Court could define what constitutes an "insurrection."

Left-leaning Biden appointee Justice Ketanji Brown Jackson also pushed back against Murray, asking that if Section 3 of the 14th Amendment applies to presidents, then why didn't Congress "put the word 'president' in the enumerated list in Section 3?"  She added, "they were listing people who were barred, and 'president' is not there. And so I guess that just makes me worried that maybe they weren't focusing on the president." 

Murray argued that this issue came up in congressional debates regarding the creation of the amendment, with a senator saying that the president was included because it falls under an office of the United States. Jackson noted that this merely pointed to the ambiguity of the insurrection clause. 

Justice Elena Kagan, an Obama appointee and former Solicitor General of the United States, also seemed skeptical of allowing Colorado to keep Trump off of the state ballot in her questioning of Murray. 

"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. In other words, you know, this question of whether a former president is disqualified for insurrection to be president again, is, just say it, it sounds awfully national to me," Kagan said. "So whatever means there are to enforce it would suggest that they have to be federal, national means." 

Earlier, Trump's legal counsel, Jonathan Mitchell, argued that a state cannot prevent Trump from being on a ballot under the insurrection clause of the 14th Amendment because Congress would have to prevent an elected candidate from taking federal office. 

"A state cannot exclude any candidate for federal office from the ballot on account of Section 3, and any state that does so is violating the holding of term limits by altering the Constitution's qualifications for federal office," Mitchell said

George Washington University Law Professor Jonathan Turley wrote on Thursday ahead of the oral arguments that he has “been a vocal critic of the theory under Section 3 as textually and historically flawed. It is also, in my view, a dangerously anti-democratic theory that would introduce an instability in our system, which has been the most stable and successful constitutional system in the world.” 

Turley told Just the News on Thursday that the Colorado respondents’ argument before the Supreme Court was “novel” and that justices from both ideological sides of the court appeared to reject it.  “The justices destroyed the narrative on many networks that any objections to this novel theory would come from the right of the court,” Turley said.

“For weeks, professors insisted that the only barrier was the bias of the conservative justices. This argument put the lie to these claims. Some of the most damaging questions came from the left of the Court. Justices Kagan and Jackson are hardly convincing members of the conservative cabal on the Court. Yet, for weeks, networks have portrayed this as a well-established theory and that the only barrier would be the bias of the Court," Turley said.  

“It now appears that it is possible for Chief Justice Roberts to secure a unanimous or nearly unanimous ruling of the Court against this dangerous theory,” he continued. 

Harvard Law School Professor Emeritus Alan Dershowitz told "Just the News, No Noise" TV show on Thursday that the arguments made by the lawyers were poor, but that the Supreme Court justices got to the "essence" of the law.

He said that Trump would "win this case, overwhelmingly, probably 9-0." This is despite his lawyer deciding "to focus on the least relevant part of the 14th Amendment, the part that says both houses of Congress, by a two-thirds vote, decide they can rescind a disqualification," Dershowitz said. "That's never going to happen in a million years."

Dershowitz later added, "So this was not a good argument. This showed off lawyers very badly. It showed off the justices quite well. I think the American public got to see justices who are much more prepared, much smarter, and much more able to get to the essence. This was a great day for the Supreme Court, and a terrible day for Supreme Court lawyers and litigants."

The Public Interest Legal Foundation (PILF) filed an amici curiae brief on the merits of the case, disagreeing with the application of Section 3. Section 3 “does not apply to President Trump,” according to PILF’s summary of its brief. “The text of Section 3 states that it applies to individuals who served in Congress, state government, or officers of the United States. Courts have previously held that the term officers refers to people who were appointed not elected.” 

The section also doesn’t apply to Trump because “there has been no finding of insurrection or rebellion committed by the former President. In fact, the Senate acquitted President Trump of insurrection charges,” the summary continues

PILF President J. Christian Adams told Just the News on Thursday that the Supreme Court justices were concerned about states removing presidential candidates from ballots. 

"The Supreme Court saw these attempts to remove a candidate from the ballot as destabilizing and a threat to the most basic American tradition of allowing the voters to elect our leaders,” Adams said. “Both conservative and liberal Justices had concern about taking power from the people to vote for their chosen candidate and giving it to unelected Secretaries of States. The Court demonstrated a measure of judgment and thoughtfulness that was refreshing and focused on the words of the Constitution.” 

Former Kansas Attorney General Phill Kline, the director of the Amistad Project, told Just the News on Thursday that he couldn't believe that the 14th Amendment's insurrection clause covered Trump's questioning of the outcome of the 2020 presidential election.

“I cannot imagine that what was intended with that amendment was for half of the American people to be disenfranchised because some in power interpret insurrection to include conduct that expresses a concern about the election,” Kline said. He added that “that's not a call for a rebellion or violence against the government. There is not any evidence that has been presented that shows Trump desired violence.” 

“If we allow individual interpretation of what insurrection is to keep people from being on the ballot, we have converted our democracy into the tyranny of those in power to make interpretations,” Kline also noted. 

He added that Trump hasn’t even been “charged with insurrection,” noting that neither Special Counsel Jack Smith nor the Jan. 6 House committee brought insurrection charges against Trump. 

Challenges to disqualify Trump from 2024 GOP primary ballots have been brought in more than 30 states over his alleged instigation of an insurrection on Jan. 6, 2021. Republicans have suggested that President Joe Biden should be removed from the Democratic primary ballots in response, but because of the increased volume of illegal immigrants entering the U.S. through the southern border. 

Attorneys general and other elected GOP officials of 27 states filed an amicus curiae brief last month, urging the court to keep former President Donald Trump on the Colorado ballot. 

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