The US supreme court heard oral arguments on whether former president Donald Trump should be removed from the ballot on Thursday – and most justices sounded deeply skeptical of the effort.
All six of the court’s conservative justices aggressively questioned the arguments that the state of Colorado had been right in determining that Trump should be barred from appearing as a candidate under section three of the US constitution’s 14th amendment. Two of the three liberal justices asked pointed questions as well, an indication that there may be broad consensus to strike down the ruling.
Here are some key takeaways.
Even the liberal justices seemed skeptical of Colorado’s arguments
Liberal justice Elena Kagan told Jason Murray, the attorney representing the Coloradans who had sued to remove Trump from their state’s ballot, that disqualifying a president for insurrection “sounds awfully national to me”, and said that the idea that one state could disqualify a candidate and possibly tip a national election was “extraordinary”.
Liberal justice Ketanji Brown Jackson seemed deeply wary of Murray’s arguments that section three of the 14th amendment applies to presidents – pointing out that the clause itself lists out other offices but not the presidency.
“Why didn’t they put the word ‘president’ in the very enumerated list in section three? The thing that really is troubling to me is I totally understand your argument, but they were listing people that were barred, and president is not there,” she said during questioning of Murray. “And so I guess that just makes me worry that maybe they weren’t focusing on the president.”
As Murray responded with a historical example in which a lawmaker argued presidents should be included, she cut him off.
“Doesn’t that at least suggest ambiguity?” she asked. “If there’s an ambiguity, why would we construe it to, as Justice Kavanaugh pointed out, against democracy?”
Conservative justices had raised similar points.
“What about the idea that we should think about democracy?” asked Brett Kavanaugh. “Think about the right of the people to elect candidates of their choice, of letting the people decide. Because your position has the effect of disenfranchising voters to a significant degree.”
There was almost no discussion or debate over whether Trump himself actually committed insurrection
The most controversial argument in the case – at least among the broader public – is the Colorado supreme court’s determination that Trump committed insurrection. If their ruling stood a chance of surviving, the justices probably would have had to give this issue careful consideration.
But in more than two hours of oral arguments, there was almost no substantive discussion of whether this is true – a sign that they’re likely to toss out the case without even getting so far as to consider this point.
Various justices did question who exactly was expected to make that determination.
The justices seemed to agree that states could not act without action from Congress
Several justices seemed ready to embrace the argument that states could not unilaterally decide to remove a candidate from the ballot for insurrection – and questioned why a state should act when federal insurrection charges hadn’t been brought.
“Congress has the authority here, not the states,” Kavanaugh said at one point. He suggested that section three had not been used for more than 150 years based on a historical understanding that an act of Congress was required.
Chief justice John Roberts pointed out that other provisions of the 14th amendment restrict the power of states. He wondered aloud why section three would then give states enormous power to disqualify a candidate. Reading section three to give such enormous power to states was “ahistorical”, Roberts said.
Kavanaugh also noted that there were federal statutes to convict people of insurrection that would bar them from holding federal office – and pointed out that Trump has not only not been convicted but not even charged with that.
“President Trump has not been charged with that, so what are we to make of that?” he asked.
“If the concern you have, which I understand, is that insurrectionists should not be able to hold federal office, there is a tool to ensure that that does not happen, namely federal prosecution of insurrectionists. And if convicted, Congress made clear, you are automatically barred from holding a federal office. That tool exists.”
Justices worried about retaliatory actions
Roberts asked Murray about “the big, plain consequences of your position” and risk of retaliation from Republicans who might move to kick Biden off the ballot in states they control. “If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side and some of those will succeed,” he warned.
“In very quick order, I would expect, although my predictions never have been correct, I would expect that 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 will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.”
Trump responded with glee
The former president called the oral arguments “a beautiful thing to watch” in a news conference with reporters after the hearing’s conclusion.
