Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
“The Supreme Court on Thursday appeared ready to hold that Colorado cannot exclude former President Donald Trump from the ballot based on his role in the Jan. 6, 2021, attacks on the U.S. Capitol. During an oral argument that lasted for more than two hours, justices of all ideological stripes questioned the wisdom of allowing a state to make its own decisions about whether a candidate should appear on the ballot, both because of the effect that such decisions would have on the rest of the country and because of the hurdles that courts would face in reviewing those decisions…
“The case centers on Section 3 of the 14th Amendment, which was enacted in the wake of the Civil War to disqualify individuals from holding office who had previously served in the federal or state government before the war but then supported the Confederacy.” SCOTUSblog
Both sides agree that the Supreme Court will most likely reverse Trump’s removal from the ballot:
“Is there even one vote on the Supreme Court to disqualify Donald Trump from the 2024 ballot for committing ‘insurrection’ amid the Jan. 6 Capitol riot? Drawing conclusions from questions at oral argument is a hazardous business, but it was hard to mistake the skeptical tenor of almost all of the questions Thursday in Trump v. Anderson…
“Justice Ketanji Brown Jackson was doubtful that Section 3 covers Mr. Trump at all. ‘Why didn’t they put the word ‘President’ in the very enumerated list?’ she asked. The disqualification clause mentions the Senate and House, as well as presidential electors, before sweeping in ‘any office, civil or military, under the United States.’ Is it likely, wondered Justice Jackson, that the amendment’s framers had the Presidency in mind, yet they ‘sort of smuggled it in through that catchall phrase?’”
Editorial Board, Wall Street Journal
“Jonathan Mitchell, the lawyer representing Trump, was in way over his head. During Mitchell’s time at the podium, the justices took turns ripping apart his arguments… [Yet] After Mitchell stepped down from the podium, after emphasizing two arguments that nearly all the justices appeared to view as weak, most of the Court spent the rest of the argument trying to come up with a better reason to rule in favor of Trump…
“In any event, enough justices raised concerns about what would happen if each state got to decide whether Trump (or President Joe Biden, for that matter) can seek the presidency that it appears very likely the Court will come up with a reason to say that states cannot do this… The justices’ practical concerns about letting these cases be resolved by states appeared to overwhelm any concerns they had about the text of the Constitution.”
Ian Millhiser, Vox
Other opinions below.
“With so much focus on the process and coverage issues, there was little interest by any of the justices in delving much into the substantive standards for what an ‘insurrection’ is and what it means to ‘engage’ in one. That’s unfortunate. If the Court is concerned about a chaotic array of states reaching different decisions, it can give them a clear, bright-line set of rules on what is and isn’t insurrection…
“If the Court is worried about uncertainty, it could settle the matter of Trump’s disqualification now, rather than kicking the can to Congress to decide when it counts the electoral votes — which, as you may recall, is how we got here in the first place.”
Dan McLaughlin, National Review
“Chief Justice John Roberts cut to the heart of the problem in his questioning. The 14th Amendment limits state's rights, especially in the ‘insurrection’ question after the Civil War. Its intent was to make that a question for Congress rather than the states so that former Confederate states could not send rebels back to Washington DC…
“The clear intent of the 13th, 14th, and 15th Amendments was to invoke federal authority over questions of slavery, citizenship, and discriminatory conduct and to supersede state power in all of these areas. It did the exact opposite of empowering states to determine eligibility for office and to settle matters of disqualification... It seems clear that the court will throw out Colorado's DQ.”
Ed Morrissey, Hot Air
“Justice Samuel A. Alito Jr. questioned the evidence [that Trump participated in an insurrection], while Kavanaugh noted that the former president hasn’t been convicted of insurrection. But a Colorado court held a five-day hearing on that question in which Trump could have testified, after which the judge concluded that he had indeed participated in an insurrection. And nothing in Section 3 or its history requires a criminal conviction…
“[Some justices] wondered whether one state court should be able to make such a determination. But every case must begin in one state. Ultimately, this is not a question of one state deciding so much as it is the United States Supreme Court looking at the facts and the law — as courts always do — and deciding whether Section 3 disqualifies Trump.”
Erwin Chemerinsky, Los Angeles Times
“The notion that individual states can’t take unilateral action to strip federal candidates from the ballot has immense practical appeal, and arguably aligns with broader constitutional principles. But it is not what Section 3 says on its face, nor is it clearly borne out by the original meaning of the amendment…
“Many of the justices’ questions on Thursday amounted to policy arguments… These questions began from the premise that states can’t possibly be allowed to take Trump off the ballot, and worked backward from there. That’s not an illegitimate way to do law. But it is not how this Supreme Court claims to do law.”
Mark Joseph Stern, Slate
