Justices Seem Wary of Kicking Trump off the Ballot in Historic Election Case

The U.S. Supreme Court met for over two hours on Tuesday to hear oral arguments on whether the 14th Amendment’s insurrection clause bars former president Donald Trump from appearing on the ballot in Colorado and other states because of his role in the deadly Capitol attack on Jan. 6, 2021. 

Justices on both ideological sides of the bench seemed skeptical of arguments to uphold Colorado’s decision and effectively kick Trump off ballots nationwide, wrestling with the practical implications of what would happen if they ruled that way. "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," said Justice Elena Kagan, one of the court’s three liberal Justices.

"It just doesn't seem like a state call,” said Justice Amy Coney Barrett, a Trump-appointee. Chief Justice John Roberts also worried about retaliation if their ruling upholds Trump being kicked off the ballot by Colorado: “I would expect that a goodly number of states will say, ‘whoever the Democratic candidate is, you’re off the ballot,’” he predicted. 

Trump v. Anderson marks the first time the nation’s highest court has considered a presidential candidate’s ballot eligibility for potentially engaging in insurrection, and is the Supreme Court’s most direct involvement in a presidential election since Bush v. Gore in 2000. The outcome could have massive political implications for Trump, who is currently in the lead for the Republican presidential nomination. A ruling against the former President could forever disqualify him from the presidency, placing the Supreme Court in an uncomfortable position at the center of another presidential election.

Read More: Supreme Court Hears High-Stakes Case Seeking to Oust Trump from 2024 Ballots

The explosive political stakes of the case were made clear when Justice Brett Kavanaugh suggested that the attempt to remove the former President from the ballot “has the effect of disenfranchising voters to a significant degree.” Trump has warned that a ruling against him would “unleash chaos and bedlam.”

Another line of questioning, from liberal and conservative Justices alike, focused on whether Trump is an "officer of the United States,” which would have implications for whether he could be disqualified under Section 3 of the 14th Amendment, and whether his disqualification would require some further act of Congress. 

The Justices largely sidestepped the legal question of whether the Jan. 6 attack on the Capitol counts as a disqualifying act of insurrection, and if Trump engaged in insurrection.

Trump’s attorney Jonathan Mitchell, a former Texas solicitor general, argued that the insurrectionist ban does not apply to the president and that Congress would have to pass specific legislation authorizing states to bar candidates from the ballot. He also argued that the Jan. 6 attack was a “riot,” not an insurrection, and denied that Trump personally engaged in any events that would qualify as insurrection.

The Justices decided to consider Trump’s ballot eligibility after Colorado’s top court ruled in December that he is ineligible for a second term because of a rarely-used provision of the Constitution that disqualifies insurrectionists from holding office—Section 3 of the 14th Amendment—which bars those who had taken an oath to “support” the Constitution from holding office if they then "engaged in insurrection or rebellion." The provision was adopted after the Civil War to prevent Confederates from returning to power, though questions remain about which authority gets to decide when to disqualify a candidate on these grounds.

“There’s a reason Section 3 has been dormant for 160 years,” Jason Murray, the lawyer representing the Colorado voters who brought the challenge against Trump, said.  “And it’s because we haven’t seen anything like January 6.”

Outside the courtroom, crowds of protesters gathered in front of the Supreme Court with banners and signs. Trump did not attend the oral arguments, instead opting to give remarks from his Mar-a-Lago home in Palm Beach, Fla. soon after the arguments ended. “It’s unfortunate that we have to go through a thing like that,” Trump said. “I consider it to be more election interference by the Democrats.”

The first 20 minutes of questioning from the Justices revolved around whether Section 3 is “self-executing” and requires legislative action for the courts to apply. Justice Sonia Sotomayor, one of the three liberal Justices, pushed back against Trump’s argument that Congress must decide whether a candidate violated Section 3 of the 14th Amendment. “History proves a lot to me, and to my colleagues generally,” Sotomayor said, pointing out that several state-level officials have been barred in the past from holding public office under the 14th Amendment. “There's a whole lot of examples of states relying on Section 3 to disqualify insurrectionists for state offices.” At least eight public officials have been barred from public office under Section 3, the most recent in 2022, when a convicted Jan. 6 rioter was removed from his elected position as a county commissioner in New Mexico.

Trump’s lawyers, however, argued that an 1869 lower-court decision—known as Griffin’s case— is relevant to the current case against Trump, ruling that the insurrection ban could not be enforced without some action first from Congress. “It is entirely up to Congress,” Mitchell said in response to the opening question from Justice Clarence Thomas. “There would not be any role for the states in enforcing Section 3, unless Congress were to enact a statute that gives them that authority.”

Jessica Levinson, a constitutional law professor at Loyola Law School, says the Supreme Court’s ruling will likely be determined on the question of whether a single state can disqualify a candidate for the presidency, and whether Congress must first pass a statute that gives states that authority. “They focused their energy on two main off-ramps,” she said. “The only question is which off-ramp it will take.”