The U.S. Supreme Court heard a pivotal case on Feb. 8 surrounding whether a state court could effectively remove presidential candidates from ballots over their alleged engagement in an insurrection.
The decision will likely be historic in that it could provide a new interpretation of a relatively untested area of law. Oral argument alone raised a series of important constitutional questions for the country while also indicating the justices’ inclinations on key legal issues.
1. Colorado Voters Who Brought The Lawsuit Face a Steep, Uphill Battle
Oral argument indicated it will be difficult for the Colorado voters challenging former President Trump to get a Supreme Court ruling in their favor. The justices’ comments suggested that they thought many important legal hurdles had to be cleared for the court to uphold Colorado’s ballot disqualification.Although their questions tended to focus on the balance between state and federal power, they cast doubt on numerous aspects of the voters’ case. That included whether President Trump was “an officer of the United States” under Section 3, whether he received adequate due process, how practical a ruling empowering states would be, and if the voters’ arguments conflicted with other aspects of the Constitution.
Justice Sonia Sotomayor seemed most sympathetic to the Colorado Supreme Court ruling. She told Jonathan Mitchell, who represented President Trump, that “there’s a whole lot of examples of states relying on Section 3 to disqualify insurrectionists for state offices, and you’re basically telling us that you want us to go two steps further ... You want us to say that self-execution doesn’t mean what it generally means.”
“Self-execution” refers to the idea that courts can enforce Section 3 without prior guidance from Congress.
“You want us now to say it means that Congress must permit states or require states to stop insurrectionists from taking state office ... and so this is a complete preemption in a way that’s very rare, isn’t it?”
While Mr. Mitchell faced pointed questions from other justices, the court’s skepticism seemed to be heavier in response to Mr. Murray.
Multiple times during questioning the justices appeared doubtful in response to arguments advanced by him. For example, Justice Ketanji-Brown Jackson seemed incredulous when asking Mr. Murray about ambiguity in Section 3: “So let me just say so your point is that there’s no ambiguity with—with having a list and not having ‘president’ in it, with having a history that suggests that they were focused on local concerns in the south, with this conversation where the legislators actually discussed what looked like an ambiguity, you’re saying there is no ambiguity in Section 3?”
Justice Jackson also said what was “really ... troubling” to her was that Section 3 listed several types of officials who could be disqualified, but not the president. Several justices—Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito—suggested that Mr. Murray wasn’t responding to their questions.
2. The Court Is Concerned About States Being Too Powerful in National Elections
The preeminent concern among Supreme Court justices appeared to be how much power Mr. Murray’s position was granting states and whether that comported with the Fourteenth Amendment’s history.“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 Elena Kagan told Mr. Murray.
The justices seemed skeptical that Congress intended to give states as much power after the Civil War as Mr. Murray implied. Justice Thomas, for example, pressed Mr. Murray on whether he had any contemporaneous examples from after the Civil War states disqualifying national candidates. Chief Justice John Roberts followed by suggesting the thrust of the Fourteenth Amendment was to restrict state power.
“I'd like to sort of look at Justice Thomas’s question sort of from the 30,000-foot level. I mean, the whole point of the Fourteenth Amendment was to restrict state power, right?” he asked.
3. Events of Jan. 6 Seemingly Less Important Than Legal Questions Surrounding the Constitution’s Phrasing and Federalism
The events of Jan. 6 were ultimately what prompted Colorado’s lawsuit and served the basis for multiple state judges determining that President Trump had engaged in an insurrection.On Feb. 8, the Supreme Court seemed less interested in debating the nature of Jan. 6. Instead, the justices seemed to focus on the implications of validating various state determinations that a candidate indeed engaged in an insurrection.
Justice Alito indicated that the amendment was different in that it didn’t provide a private cause of action—as other amendments do, that could be directly enforced by courts.
He asked Colorado Solicitor General Shannon Stevenson, who was representing Secretary of State Jena Griswold, whether one state’s determination of insurrection would create a “cascading effect.”
“Could that have a cascading effect, and so the decision by a court in one state—the decision by a single judge whose factual findings are given deference, maybe an elected trial judge, would have potentially an enormous effect on the candidates who run for president across the country?” he asked.
Justice Bret Kavanaugh also wondered what the court was to make of the fact that President Trump hadn’t been charged with the federal statute prohibiting insurrection.
4. The Court Faces ‘Very High Stakes’
Justice Amy Coney Barrett suggested in an exchange with Mr. Murray that the court faced “very high stakes” in the case. Her comments came in the context of a discussion with Mr. Murray about how far the court could wade into a state court’s factual determinations about something like an insurrection occurring.“In this context, which is very high stakes, if we review the facts essentially de novo you want us all to just watch the video of the ellipse and then make a decision without any deference to or guidance from lower court fact finding? That’s unusual,” she said.
The court’s decision could impact how much sway states have over future presidential elections. This case is also coming at a time when the court is facing historically low trust and calls for reform.
Without a decisive interpretation of the amendment, the justices could return the issue to the states or to Congress—both of which may not produce quick and uniform answers. Justice Roberts, at one point, told Mr. Mitchell it was “pretty unlikely” that Congress would provide the needed two-thirds majority to provide enforcing legislation under Section 3.
One of the many amicus briefs submitted to the court was authored by several law scholars, including former Ohio Solicitor General Edward Foley. The authors worried that if the Supreme Court passes the buck to Congress rather than issuing a decisive opinion, it could lead to political violence. They speculated that Congress effectively invalidating Americans’ votes could lead to a scenario similar to the Capitol breach on Jan. 6, 2021.
Both Justice Jackson and Justice Roberts worried about a lack of uniformity among states if the court allowed states to make their own determinations about disqualification under Section 3. Justice Roberts, for example, predicted just a handful of states could decide presidential elections due to varying procedures within different states.
“If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side,” he said. “And some of those will succeed. Some of them will have different standards of proof. Some of them will have different rules about evidence. Maybe the Senate report won’t be accepted. In others because it’s hearsay.”
“Maybe it’s beyond a reasonable doubt, whatever. In very quick order, I would expect ... 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. It'll come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.
