U.S. Supreme Court justices skeptical on decision to keep Trump off the ballot

Liberal justices of the U.S. Supreme Court joined with their conservative colleagues in asking pointed questions about a case from Colorado that would strip Donald Trump from the presidential primary ballot in that state.

Late last year, the Colorado Supreme Court found that Mr. Trump was constitutionally barred because he participated in insurrection on Jan. 6, 2021, when he delivered an inflammatory speech on the day armed rioters stormed the U.S. Capitol building. Under the U.S. Constitution, a person who has previously taken an oath cannot return to office if they “have engaged in insurrection or rebellion.”

The case holds immense consequences, with legal scholars saying the U.S. today confronts threats of political violence not seen since the Civil War as Mr. Trump’s candidacy hangs in the balance.

“The question that you have to confront is why a single state should get to decide who gets to be president of the United States,” said Elena Kagan, who was nominated to the Supreme Court by Barack Obama. If the actions of any individual state “make the difference between whether Candidate A is elected or Candidate B is elected, that seems quite extraordinary, doesn’t it?” she asked.

“I’m trying to get you to grapple with what some people have seen as the consequences of the argument that you’re advancing,” added Justice Samuel Alito, a conservative justice nominated by George W. Bush, as he questioned the legal team representing the Colorado voters who want Mr. Trump removed from the ballot. But, he said, “I’m not getting a whole lot of help from you about how this would not be an unmanageable situation.”

 

 

The outcome of the case is likely to turn on narrow historical and legal questions. One is the distinction in meaning between an office of government and officer of the United States – a question that can determine whether the insurrection provisions apply to a unique candidate like Mr. Trump, who did not previously hold office . Another is whether the Constitution bars an insurrectionist from running for office, or merely from taking office. Another is whether the “insurrection” provision can be enforced without congressional legislation

Another is the original intent of the Constitution’s 14th Amendment, which was enacted in 1868, in the wake of the Civil War, when the U.S. legislators sought to extend equal rights to emancipated slaves and prevent unrepentant Confederates from reclaiming power.

“The whole point of the 14th Amendment was to restrict state power,” said Chief Justice John Roberts, a conservative. To argue that it instead empowers states, giving them the ability to enforce who can run for president, “seems to be a position that is at war with the whole thrust of the 14th Amendment and very ahistorical,” he said.

But the Colorado case and Mr. Trump’s conduct have also brought to the fore foundational questions about the U.S., and how its institutions can respond to a president who actively sought to overturn the results of an election he lost.

“What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide?” asked Brett Kavanaugh, a conservative justice nominated by Mr. Trump. “Because your position has the effect of disenfranchising voters to a significant degree.”

Jason Murray, a lawyer for the six Colorado voters who brought the case, argued that Mr. Trump himself was to blame.

“President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance,” Mr. Murray said.

He argued that the drafters of the 14th Amendment “knew from painful experience that those who had violently broken their oaths to the Constitution couldn’t be trusted to hold power again, because they could dismantle our constitutional democracy from within.”

The U.S. Constitution imposes several limits on who can become president, including their age, the nature of their citizenship and the number of terms they have already served.

Jonathan Mitchell, a lawyer for Mr. Trump, argued that the “insurrection” provision is less categorical than those requirements because it can be overturned by a two-thirds vote in Congress.

Several justices expressed skepticism, including Mr. Alito. “Surely one would not argue that the fact that the president or a governor can pardon someone from a criminal conviction or a criminal offence means that the person couldn’t be prosecuted in the first place?” he said.

Ketanji Brown Jackson, a liberal justice, also questioned the argument that the “insurrection” provision does not apply to Mr. Trump because he does not fit the definition of a previous officer of the United States – a situation that is nearly unique to him.

That’s a “bit of a gerrymandered rule, isn’t it, designed only to benefit your client?” she asked.

It’s not clear how long the Supreme Court will take to consider those arguments, although there is a political urgency to its decision. The Colorado Republican presidential primacy is scheduled for March 5.

“We’re hoping the sooner the better for the sake of everybody involved,” said Krista Kafer, one of the Colorado voters who brought the case. Ms. Kafer was in Washington, D.C. on Thursday to hear the arguments.

She acknowledged that it would be disruptive for the court to uphold the Colorado decision. The alternative, she argued, is worse.

“It’s much more dangerous – and that is, you have somebody who tried to overturn an election to the point of inciting violence being allowed to run again.” Such a decision, she warned, would also send a message to other candidates about the acceptability of such conduct.

 

 

The importance of the Supreme Court’s decision was underscored by the filing of more than 70 “friend-of-the-court” briefs by U.S. Senators, individual states, historians and legal scholars.

A joint filing by 27 states and the Arizona legislature argued that the court should butt out of screening presidential candidates.

The Colorado “decision undermines the people’s right to judge who is best to represent them,” the Republican National Committee argued.

But a trio of former Republican governors argued that the U.S. Constitution was intended to ensure that perpetrators of treason or treachery could not return to office. “Allowing this to happen would recklessly and irresponsibly risk the end of our republic,” they wrote.

Indeed, the stakes of the case are so high that the U.S. Supreme Court must make a decision now, wrote three legal scholars – one of them Benjamin Ginsberg, a lawyer who represented Mr. Trump’s 2020 re-election campaign.

Waiting to determine Mr. Trump’s constitutional eligibility until after this November’s election is concluded “invites disaster for the Nation,” they wrote. A ruling now might also provoke fury. But more serious consequences await, they warned, if the election takes place without first resolving fundamental questions about Mr. Trump’s candidacy.

“Not since the Civil War has the United States confronted such a risk of destabilizing political unrest,” the scholars wrote, “and perhaps never has this Court been in such a clear position to head it off.”

 

This article was reported by The Globe and Mail