Democrat-Appointed Justices Skeptical in Trump Ballot Case

Justices of the U.S. Supreme Court pose for their official photo at the Supreme Court in Washington on Oct. 7, 2022. (Front L–R) Justices Sonia Sotomayor and Clarence Thomas, Chief Justice John Roberts, Justice Samuel Alito and Justice Elena Kagan. (Back L–R) Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Olivier Douliery/AFP via Getty Images

At least two of the Democrat-appointed Supreme Court justices signaled during Thursday’s hearing that they are open to siding with former President Donald Trump’s attorneys to reject a Colorado decision barring the former president from the ballot in that state.

During the two-hour oral arguments session, Justices Elena Kagan and Ketanji Brown Jackson joined the court’s Republican-appointed justices in voicing skepticism about a state’s ability to disqualify under the 14th Amendment’s Section 3.

“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,” Justice Kagan told attorney Jason Murray, who represents several Colorado voters who brought the challenge. “What’s a state doing deciding who other citizens get to vote for for president?”

“It’s just more complicated, more contested and, if you want, more political,” added Justice Kagan, an Obama nominee.

At one point, Justice Jackson, a Biden nominee, noted that Section 3 of the 14th Amendment makes no mention of the term, “president,” but it listed other officials who might be barred—including members of Congress, military officials, judges, and more. That section, written after the Civil War, says those who engaged in an “insurrection or rebellion” against the United States can’t hold office.

“They were listing people that were barred and ‘president’ is not there,” the justice said. “I guess that just makes me worry that maybe they weren’t focused on the president.”

When referring to Section 3, “Why didn’t they put the word president in the very enumerated list in Section 3,” Justice Jackson asked Mr. Murray. “The thing that really is troubling to me … they were listing people that were barred, and ‘president’ is not there.”

Mr. Murray rejected claims by President Trump’s counsel that he isn’t an officer of the United States. He previously argued that the former president should be grouped into that category.

“President Trump’s main argument is that this court should create a special exemption to Section 3 that would apply to him and to him alone,” he said. “President Trump disqualified himself,” he also said.

About two months ago, Colorado’s Supreme Court ruled that under the 14th Amendment, President Trump cannot hold office because, according to the majority’s ruling, he engaged in an insurrection for his activity around Jan. 6, 2021. He has not been charged or convicted of an insurrection or rebellion against the government.

A few days after that decision, Maine’s Democratic secretary of state, Shenna Bellows, ruled that President Trump also cannot appear on Maine’s ballots under a similar pretext. That case was also appealed to the Supreme Court.

The lawyers for the Colorado voters who sued to remove President Trump’s name from the Colorado ballot counter that there is ample evidence that the events of Jan. 6 constituted an insurrection and that he incited it. They say it would be absurd to apply Section 3 to everything but the presidency or that President Trump is somehow exempt. And the provision needs no enabling legislation, they argue.

Meanwhile, President Trump’s attorneys argued the Jan. 6 breach wasn’t an insurrection, and even if it was, the former commander-in-chief did not go to the Capitol or join the others. The wording of the amendment also excludes the presidency and candidates running for president, they say. Even if they are wrong about all of that, they argue that Congress must pass legislation to reinvigorate Section 3.

‘Not Pushing Back’

Some legal experts noted that because some of the Democrat-appointed justices were skeptical of the plaintiff’s claims, the high court is very likely to rule that states can’t disqualify federal officers from appearing on ballots.

“Important to note that the liberal Justices are not pushing back on this argument about the federal interest here. Suggests the cake is already baked. Perhaps they’ve also been discussing the immunity case and whether to let that go to trial and not grant a stay next week,” Rick Hasen, a law professor at the University of California-Los Angeles, wrote on X.

He wrote that it is unclear how Justice Sonia Sotomayor, an Obama appointee, will rule based on her line of questioning on Thursday. “It would not be surprising to see a quick 9-0 or 8-1 ruling reversing Colorado and keeping Trump on the ballot ... Sotomayor is the question mark,” he added.

Steve Vladeck, a Supreme Court researcher with the University of Texas, predicted a Supreme Court ruling “between 7-2 and 9-0 for the very specific proposition that states can’t unilaterally disqualify candidates running for President on the ground that they engaged in insurrection.”

Earlier on, the Supreme Court agreed to fast-track consideration of the case, notably because both Maine and Colorado hold their primary elections on March 5. Both the Colorado Supreme Court and the Maine secretary of state’s rulings are on hold until the appeals play out.

In addition to the ballot issue, the high court also will hear an appeal in April from one of the more than 1,200 people charged in the Jan. 6 breach. The case could upend a charge prosecutors have brought against more than 300 people, including the former president.

The Associated Press contributed to this report.