It’s the first time that voters have tried to block a candidate from the presidency under a once-obscure post-Civil War constitutional provision barring those who “engaged in insurrection” from holding office.
Some takeaways from the arguments:
Trump seems likely to stay on the ballot
In tone and tenor, the justices’ questions challenged the notion that a state court can order a presidential contender off the ballot for violating Section 3 of the 14th Amendment. That section bars those who engage in insurrection from holding office.
The case was brought by a group of Republican and independent voters, and the state of Colorado. Their argument was rooted in the idea that states have the ability to police their own ballots and bar Trump for his role in the violent insurrection on the U.S. Capitol on Jan. 6, 2021. The riot stemmed from Trump’s refusal to accept the results of the presidential election that the Republican lost to Democrat Joe Biden.
From across the court’s ideological divide, there was near consensus that the Colorado arguments were flawed.
Justice Elena Kagan called the issue of determining whether someone engaged in insurrection “just more complicated and more contested and more political.” Justices Samuel Alito, Brett Kavanagh and Chief Justice John Roberts questioned Jason Murray, the lawyer for the plaintiffs, about what would stop other states from citing Section 3 in taking aim at politicians they didn’t like.
Murray gave well-rehearsed arguments that won the day in the Colorado Supreme Court, whose 4-3 ruling that Trump was ineligible got the case to Washington. Murray contended that the Capitol riot was a once-in-history sort of event and that courts would ensure that the provision isn’t abused. But that line did not not seem to persuade the justices.
A way out?
Section 3 presents a quandary for judges, who are reluctant to make decisions that reorder democratic elections, especially without a precedent. The provision doesn’t spell out any procedures or even the meaning of “insurrection.” It just says anyone who engaged in one can’t hold office.
The court’s best way out may be a lookback to an 1869 case known as Griffin’s case. That involved a Virginia man who argued he couldn’t have been convicted of a crime because the judge who heard his case was, as a former Confederate, disqualified from office under Section 3.
Salmon Chase, who was then the chief justice of the Supreme Court, heard the case while acting as an appellate judge. He ruled that Congress had to create a mechanism for Section 3 to take effect. Congress did, but the measure expired in the 1940s.
The justices repeatedly asked about Griffin’s case. Trump’s lawyers have argued it is still the only rational way for Section 3 to be applied. Chase had argued previously that Section 3 took effect automatically so the plaintiffs seeking to disqualify Trump contended his ruling was not good law. But that line of argument clearly didn’t carry the day.