‘It Was Not an Insurrection’: SCOTUS Hears Oral Arguments on Trump Ballot Case

The U.S. Supreme Court on Thursday heard oral arguments for and against the Colorado state Supreme Court’s decision to bar former President Donald Trump from the ballot. In December, Colorado’s highest court ruled that Trump would not be permitted to appear on Republican presidential primary ballots in the state due to the events at the U.S. Capitol on January 6, 2021.

They wrote, “A majority of the court holds that Trump is disqualified from holding the office of president under section 3 of the 14th Amendment.” The argument made by leftist judicial activists has been that the former President’s actions and inactions on January 6 constitute engaging in an act of insurrection, thus disqualifying him from holding office again.

The case has finally made its way to the U.S. Supreme Court and, and according to legal scholars, the justices’ questions during oral arguments Thursday seemed to indicate a decision in favor of Trump. Appearing Thursday evening on “Washington Watch with Tony Perkins,” Jeff Clark, senior fellow and director of Litigation at the Center for Renewing America quipped, “I think it was a complete smackdown.” He added, “My read of it is that this is going to be at least an eight-to-one decision, and it might be unanimous.”

Colorado’s case against Trump rests on the text of Section 3 of the 14th Amendment, which reads:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

Of note, neither “president” nor “vice president” appears in the list of offices enumerated in the provision, a fact that even ideologically left-wing justices hammered on. Biden-appointed Justice Ketanji Brown Jackson asked, “But then why didn’t they put the word ‘president’ in the very enumerated list in Section 3?” She continued, “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.” When Jason Murray, the lawyer representing Colorado alongside the state’s Solicitor General Shannon Stevenson, cited an historic congressional debate in which a U.S. senator argued that “any office under the United States” includes the president, Jackson responded, “The language here doesn’t seem to include ‘president.’ Why is that?” Clark observed, “That list starts with senator, then goes to representative. It’s a hierarchically arranged list, and the president’s not there. The vice president’s not there. And she [Jackson] came back to that several times.”

A key point justices focused on Thursday was whether or not a state had the right to disqualify a national candidate. Justice Clarence Thomas, an avowed originalist, asked Murray to provide an historical example of Section 3 of the 14th Amendment being used to disqualify a national candidate. Citing the post-Civil War and Reconstruction era that brought about the creation of this particular constitutional provision, Thomas said, “There were a plethora of Confederates still around. There were any number of people who would continue to either run for state offices or national offices,” asking Murray to name one national candidate disqualified under the 14th Amendment. Murray said he could provide no example.

“What was the purpose of Section Three? States were sending people — the concern was that the former Confederate states would continue being bad actors,” Thomas continued. “And the effort was to prevent them from doing this and you’re saying that, ‘Well, this also authorized states to disqualify candidates.’ So what I’m asking you for, if you are right, what are the examples?”

“Your Honor, the examples are states excluded many candidates for state office, individuals holding state offices. We have a number of published cases of states,” Murray began responding before Thomas cut him off. “I understand the states controlling state elections and state positions,” Thomas interjected. “What we are talking about here are national candidates.”

Chief Justice John Roberts followed up, asking, “I’d like to sort of look at Justice Thomas’s question sort of from the 30,000-foot level. I mean, the whole point of the Fourteenth Amendment was to restrict state power, right?” He noted that the 14th Amendment in its entirety guarantees, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” concluding that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

Following the historical context provided by Thomas, Roberts’s point appears to be that the 14th Amendment was enacted to ensure that former Confederate states did not attempt to suppress or abridge the newly-secured rights afforded to black Americans. Thomas had reminded Murray that, in the wake of the Civil War, “there were people who felt very strongly about retaliating against the South, the radical Republicans, but they did not think about authorizing the South to disqualify national candidates. And that’s the argument you’re making…”

Jackson also joined Justices Samuel Alito, Neil Gorsuch, and Elena Kagan in questioning why a single state should determine who can or cannot run for president, which would pose a threat to a national standard of uniformity. Kagan initially asked:

“I think that the question that you have to confront is why a single state should decide who gets to be president of the United States. In other words, you know, this question of whether a former president is disqualified for insurrection to be president again is, just say it, it sounds awfully national to me. So whatever means there are to enforce it would suggest that they have to be federal, national means. Why does — if you weren’t from Colorado and you were from Wisconsin, or you were from Michigan, and it really — what the Michigan secretary of state did is going to make the difference between whether Candidate ‘A’ is elected or Candidate ‘B’ is elected, I mean, that seems quite extraordinary, doesn’t it?”

When Murray declared that it was now up to the Supreme Court to issue a ruling to restore a national standard of uniformity and determine whether a single state has the authority to make such a decision regarding elections, Kagan responded, “Well, I suppose this court would be saying something along the lines of that a state has the power to do it.” She added, “But I guess I was asking you to go a little bit further and say why should that be the right rule? Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?”

Alito and Gorsuch later questioned Murray’s claim that, by allegedly committing an act of insurrection, Trump was automatically ineligible to hold the office that he currently held. Both Alito and Gorsuch asked whether or not, in the immediate aftermath of January 6 and before leaving office, Murray held that military officers were under Trump’s command. Following on a line of questioning introduced by Alito, Gorsuch asked, “What would compel — and I’m not going to say it again, so just try and answer the question. If you don’t want to answer it, fair enough, we’ll move on. What would compel a lower official to obey an order from that individual?”

Murray responded that chain of command must be followed and that, in the situation Gorsuch described, it would be up to Congress to impeach the president who had committed or engaged in an act of insurrection. “[I]mpeachment’s the only way to validate that they don’t have the ability to hold that office and should be removed,” Murray said. In the absence of impeachment, constituting “federal enforcement,” Murray explained, it would be up to the Supreme Court to adjudicate a national standard of uniformity regarding whether an individual (Trump, in this case) had in fact committed or engaged in an act of insurrection and was therefore disqualified from running for office again.

“I understand that we could resolve it so that we have a uniform ultimate ruling on it,” Jackson interrupted. “I guess my question is why the Framers would have designed a system that would — could result in interim disuniformity in this way where we have elections pending and different states suddenly saying, ‘You’re eligible, you’re not,’ on the basis of this kind of thing?”

Alito took up the line of questioning next, asking, “Let me come back to the question of what we would do if … different states had adjudicated the question of whether former President Trump is an insurrectionist using a different record, different rulings on the admissibility of evidence, perhaps different standards of proof. Then what would we do?” Murray responded that the court has the freedom to accept or reject cases based on the evidentiary record — which, in this case, he said, “All the parties agree is sufficient for a decision,” as evinced by the Supreme Court taking up the case — and that, “Ultimately, what we have here is an insurrection that was incited in plain sight for all to see.”

“Yeah, but you’re really not answering my question. It’s not helpful if you don’t do that,” Alito replied, hammering on inconsistencies in Colorado’s argument. “[S]uppose we have two different records, two different bodies of evidence, two different rulings on questions of admissibility, two different standards of proof, two different sets of fact findings by two different judges or maybe multiple judges in multiple states. Then what do we do?”

Towards the end of oral arguments, keeping with the theme of a national standard of legal uniformity, Alito asked Colorado’s Solicitor General, “We have been told that if what Colorado did here is sustained, other states are going to retaliate and they are going to potentially exclude another candidate [Biden] from the ballot. What about that situation?”

“Your Honor, I think we have to have faith in our system that people will follow their election processes appropriately, that they will take realistic views of what insurrection is under the 14th Amendment,” Stevenson replied. “Courts will review those decisions. This court may review some of them. But I don't think that this court should take those threats too seriously in its resolution of this case.”

“You don't think that’s a serious threat?” an incredulous Alito asked. “We should proceed on the assumption that it’s not a serious threat?” Stevenson answered, “I think we have institutions in place to handle those types of allegations.”

“What are those institutions?” Alito asked. Stevenson replied, “Our states, their own electoral rules, the administrators who enforce those rules, the courts that will review those decisions, and up to this court to ultimately review that decision.”

For his part, former Texas Solicitor General Jonathan Mitchell, who was representing Trump, argued based on the text of the Constitution that, first of all, Trump did not engage in an act of insurrection on January 6 and, second, that Section 3 of the 14th Amendment did not apply to the U.S. president, an office Trump held on January 6, 2021. “What we said in our opening brief was President Trump did not engage in any act that can plausibly be characterized as insurrection,” Mitchell stated.

“So why would it not be?” Jackson asked him. “What is your argument that it’s not? Your reply brief says that it wasn’t because, I think you say, it did not involve an organized attempt to overthrow the government.”

“This was a riot. It was not an insurrection,” Mitchell explained. “The events were shameful criminal violence, all of those things, but did not qualify as insurrection as that term is used in Section 3.” Jackson concluded her questioning on the subject.

“I think this is disastrous for those who are predicting that President Trump was going to be held guilty of an insurrection,” Clark concluded of the oral arguments. “And I think the Supreme Court is going to make relatively short work of this.” The Supreme Court does not announce in advance when it will issue its rulings.