The Supreme Court heard oral arguments Thursday about whether former President Trump could be banned from the ballot this year.
The case stems from a December ruling by the Colorado Supreme Court, which held that Trump should be struck from the GOP primary ballot in that state on the basis of the 14th Amendment.
Section 3 of the 14th Amendment appears to bar anyone who has “engaged in insurrection or rebellion” from holding office — though its precise meaning is contentious and was much-debated during Thursday’s proceedings.
Trump critics contend that his actions pertaining to the Capitol riot of Jan. 6, 2021,amount to insurrection and that he should therefore be barred from the ballot. His defenders counter that such a decision would deny voters their fundamental rights.
Trump faces 14th Amendment challenges in several other states, which gives added urgency to the Supreme Court’s deliberations.
Here are the main takeaways from the day.
Justices appear deeply skeptical of the anti-Trump case
Oral arguments can sometimes be misleading as to where the justices end up. But it would be a huge surprise after Thursday’s arguments if the court ultimately sides with Colorado.
The justices seemed extremely skeptical about empowering individual states to bar candidates from federal office on 14th Amendment grounds.
That might be expected in a high court with a 6-3 conservative majority. But, tellingly, even some liberal justices appeared to have misgivings.
“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 asked Jason Murray, the lawyer representing the six Colorado voters who filed suit to keep Trump off the ballot.
Kagan was nominated to the court by former President Obama. Her concern was echoed moments later by her ideological polar opposite, Justice Amy Coney Barrett. “It just doesn’t seem like a state call,” said Barrett, a Trump nominee.
Murray also endured several sticky moments under questioning from the justices, including Justice Clarence Thomas, whose questions highlighted the extreme historical rarity of states barring candidates for federal office on insurrectionary grounds.
The day’s most heated exchange was between Murray and Justice Neil Gorsuch, who suggested that if the plaintiff’s case was taken at face value, a sitting president could be considered illegitimate from the moment he aided an alleged insurrection.
Gorsuch asked whether military officers or legal officials could refuse to obey orders from the president in such a scenario. Murray seemed reluctant to answer that question directly, leading an irritated Gorsuch to reprimand him for trying to “change the hypothetical.”
Beyond such fireworks, it was crystal clear that the overall tenor of the court’s questioning seemed highly favorable for Trump.
But not all plain sailing for Team Trump
The Trump team looks likely to emerge victorious — but it had some uncomfortable moments along the way.
At the outset, Jonathan Mitchell, representing Trump, was arguing that states do not have the power to banish people from the federal ballot, when Chief Justice John Roberts intervened.
Roberts asked how this could be true in a blanket sense. He offered the hypothetical of a candidate seeking to get on the ballot in Illinois while being a resident of Indiana, in violation of residency requirements.
“The secretary of State can’t say, ‘No you can’t?’” an incredulous Roberts asked.
Mitchell contended the case of alleged insurrection was different, arguing that barring a candidate on 14th Amendment grounds amounted to changing the qualifications for office.
Later, amid debate over a confusing clause in the amendment — the question being whether it only applies to someone who has previously taken an oath for a lower office — Justice Sonia Sotomayor noted that any exemption on those grounds would apply to Trump alone.
Trump had never taken any oath of political or military office prior to becoming president.
“Bit of a gerrymandered rule, isn’t it?” Sotomayor sniffed. “Designed to benefit only your client?”
Jan. 6 rears its head — but only at the margins
The Capitol riot itself was not the central issue during arguments, which focused on case law and the exact meaning of the 14th Amendment.
But it did come into focus, sometimes dramatically.
Justice Ketanji Brown Jackson, for instance, took issue with the part of the Trump team’s argument that held that Jan. 6 did not amount to an insurrection.
Mitchell, the Trump lawyer, said an insurrection “needs to be an organized, concerted effort to overthrow the government of the United States.”
“A chaotic effort to overthrow the government is not an insurrection?” Jackson shot back.
Separately, Trump’s claim that he is immune from prosecution — a question that is likely to reach the court in a separate case — also surfaced briefly.
Justice Brett Kavanaugh asked Mitchell whether he would accept that someone tried and convicted for insurrection by federal prosecutors could indeed be disqualified from holding office.
“Yes, but the only caveat that I would add is that our client is arguing that he has presidential immunity,” Mitchell responded. “So we would not concede that he can be prosecuted for what he did on January 6.”
A surprise from Justice Jackson
One of the most surprising developments of the day revolved around Jackson.
Jackson, a liberal nominated by President Biden and the only Black female justice in the court’s history, was broadly expected to be skeptical of Trump’s case.
That may have been true of some arguments advanced by the former president’s side.
But Jackson appeared surprisingly sympathetic to the argument that the relevant section of the 14th Amendment does not apply to the office of the presidency.
She asked the lawyers for both sides whether, given the original context of the Civil War, the amendment might have simply been intended to protect against the “possible infiltration and embedding of insurrectionists into the state government apparatus — and the real risk that former Confederates might return to power in the South via state-level elections.”
Trump critics in this case have argued it is implausible that the 14th Amendment’s framers wanted to bar lower-level officials on the basis of insurrection while also exempting the president.
It was striking to hear Jackson appear to take the opposite tack.
Trump and his allies fire back
Soon after the Supreme Court arguments, Trump spoke to reporters at Mar-a-Lago, where he contended that the case amounted to “more election interference by the Democrats.”
He repeated his frequently voiced criticisms about alleged “weaponization” of the justice system but praised his legal team for what he contended was a “very good” presentation that he contended had been “well-received.”
Several Trump allies, including Sens. J.D. Vance (R-Ohio) and Tommy Tuberville (R-Ala.), also expressed support for him, arguing that the Colorado effort was fundamentally undemocratic.
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