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The US Supreme Court decides on the exclusion of Donald Trump from the state of Colorado.
A clear decision is looming.
Washington DC - The Supreme Court appeared poised Thursday to allow former President Donald Trump to remain on Colorado's ballot.
The Supreme Court expressed grave concerns about allowing a single state to disqualify the leading Republican candidate from running for national office.
Supreme Court decides on former President Donald Trump
Justices across the ideological spectrum warned of troubling political implications if they do not overturn the Colorado Supreme Court's decision.
Trump was removed from the ballot after it was determined that he was involved in the insurrection surrounding the attack on the US Capitol on January 6, 2021.
The court addressed the unprecedented and momentous question of whether a state court can use a rarely cited post-Civil War constitutional provision to bar Trump from returning to the White House.
During the more than two-hour debate, the justices raised questions that suggested the often divided bench could reach a unanimous or near-unanimous decision to reject six Colorado voters' challenge to Trump's electability.
Not since the court's 2000 decision in Bush v. Gore, which involved the counting of ballots that sealed the election for President George W. Bush, has the Supreme Court been cast in such a crucial role in a presidential election urged.
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Chief justices debate whether to disqualify Trump from voting in Colorado
Liberal Justice Elena Kagan repeatedly questioned whether a single state should be allowed to decide whether to disqualify a presidential candidate.
“Why should a single state have the ability to make this decision not only for its own citizens but also for the rest of the nation?” she asked, adding: “That seems pretty extraordinary, doesn’t it?”
Conservative Justice Amy Coney Barrett agreed, adding that “it just doesn’t look like a decision by the state.”
Trump is rapidly approaching the GOP nomination, and several justices have opined that a state voter-initiated ruling barring him from holding federal office would extremely disrupt the presidential race.
Chief Justice John G. Roberts Jr. predicted that if the justices let the Colorado decision stand, a number of other states would quickly seek to disqualify the leading Democratic candidate.
He called the prospect of a handful of states deciding the presidential election a “pretty disheartening consequence.”
Conservative Judge Kavanaugh on Trump – “Let the people decide”
Judge Brett M. Kavanaugh feared voter disenfranchisement if the court barred Trump from the 2024 election.
“What about the idea that we should think about democracy, about the right of the people to elect candidates of their choice, to let the people decide,” he asked.
Attorney Jason Murray, who represents Colorado voters, responded: "The reason we're here is because President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn't require that that he gets another chance.”
Law professor Muller expects the Supreme Court to make an almost unanimous decision
Derek Muller, a law professor at the University of Notre Dame who has followed the case closely, said Thursday's arguments showed that both liberals and conservatives on the court are "uncomfortable with the idea that this is going to be the decision." .
“The court does not want to deal with the long-term resolution of election law disputes for presidential candidates,” said Muller.
In contrast to the split decision in Bush v. Gore that polarized the nation, Muller said a unanimous or near-unanimous decision might be more acceptable to the public.
"Maybe it's more comfortable for people to say, 'Listen, we really expect the political process to resolve this question rather than expecting litigation to answer the question.'"
Supreme Court decides on Donald Trump – that’s what it’s all about
The Supreme Court has heard the case on a fast-track basis and could announce a decision at any time.
The ruling is expected to resolve the question of Trump's eligibility in other states where similar lawsuits have been filed.
Former US President Donald Trump.
© Kyle Mazza/Imago
The Colorado Supreme Court has put its December decision on hold while the legal battle continues.
Trump's name will appear on the already printed ballot for the March 5 primary.
The legal issues at issue involve Section 3 of the 14th Amendment, which prohibits anyone who has previously sworn to uphold the Constitution as an “officer of the United States” from returning to office if they have breached their oath by rioting has.
The challenge to Trump's candidacy was filed by six Colorado voters - four Republicans and two independents.
After a five-day trial, a lower court judge concluded in November that Trump committed insurrection when he summoned his supporters to Washington and encouraged an angry crowd to disrupt Congress' certification of President Biden's 2020 victory .
However, the judge also found that Section 3 does not apply to the presidency.
A divided Colorado Supreme Court disagreed and barred Trump from the election, prompting him to appeal to the Supreme Court.
The Secretaty of State in Maine, which is responsible for elections, came to the same conclusion, but its decision is not yet final.
Much of Thursday's discussion centered on differing interpretations of the text and history of the 14th Amendment's provision, also known as the Disqualification Clause, which was originally intended to prevent former Confederates from returning to power after the Civil War.
Conservative vs. liberal judges: Supreme Court expresses skepticism about Colorado decision
Conservative Justice Clarence Thomas and liberal Justice Ketanji Brown Jackson — who have clashed on most of the issues before the court — both expressed strong skepticism about Colorado voters' view of the scope of the 14th. They agreed with Roberts' assessment that The post-Civil War amendment was intended to limit the power of the states.
And yet, Roberts said, Colorado voters who want to remove Trump from the ballot appear to be trying to use the same amendment to say states have the power to block candidates from running for national office .
“This seems to be a position that is at odds with the entire tenor of the 14th Amendment and is very ahistorical,” Roberts said.
It is not clear from the text of Section 3 who should enforce the clause or when it should be invoked.
If the court allows Trump to remain on the ballot and he wins, the question of whether he is eligible to be president could arise again, warned Murray, the attorney for Colorado voters.
“I think the question could come back with a vengeance because after the presidential election — if President Trump wins — members of Congress will have to decide whether he will be barred from office and whether the votes cast for him will be counted under the Electoral Count Reform Act should be,” said Murray.
Experts advise on disqualification clause – “You have a list and the President is not on it”
The majority of justices appeared ready to side with the argument of Trump lawyer Jonathan Mitchell, who said enforcing the disqualification clause is a matter for Congress, not state courts or officials.
Additionally, Mitchell said Section 3 does not apply to Trump because the president is not an "officer of the United States," which is one of the terms the section uses when referring to potential insurrectionists.
Jackson appeared to share his doubts about whether Section 3 applies to former presidents, since it is not among the government positions explicitly listed in the text.
“They have a list and the president is not on it,” she emphasized.
However, Kagan pressed Mitchell to question why the framers of the Constitution left out the highest office in the land.
What reason did they have, she asked, to say that an insurgent cannot hold the "full range of offices in the United States, but we have no problem with that insurgent being president"?
Mitchell acknowledged that it "seems strange that President Trump is falling through the cracks," but said the text represents a compromise. He emphasized that "officer" means an appointed official, not the president-elect.
When he took the podium, Murray, the voters' lead advocate, urged the justices not to create a "special exception" to the disqualification clause for Trump.
Did Trump incite his voters to insurrection on January 6th?
Throughout the argument, it was repeatedly noted how much the country's political and civic landscape has changed in recent years, with increasingly frequent impeachment proceedings in Congress and unprecedented efforts to undermine the 2020 election results.
Murray pointed out that Section 3 has rarely been invoked in modern times: “There's a reason why Section 3 has been dormant for 150 years, and that's because we haven't seen anything like January 6th since Reconstruction have."
Alito countered that the past cannot predict the future, pointing out that there hasn't been an impeachment trial of a president in more than 100 years and there have been "three in a fairly short period of time in the last few decades."
But the justices did not spend much time addressing the question of whether Trump incited an insurrection - an issue that has deeply divided Democrats and Republicans.
The first mention of this topic came when Jackson asked Trump's lawyer why the violent attempt to prevent Congress from certifying the counting of electoral votes on January 6 did not constitute an insurrection.
Mitchell responded that the attack was a "riot" and that there was no "organized, concerted action to overthrow the government."
“The events were shameful, criminal, violent, all of those things, but it was not a riot,” Mitchell said.
Trump was not present at Thursday's hearing, although he has appeared in court recently in other legal cases involving him.
However, he said he watched the hearing from Mar-a-Lago, his home and private club in Florida.
After the hearing, Trump defended his words and the behavior of his supporters on January 6 to reporters.
“No weapons” when storming the Capitol – Trump lies about January 6th
In the three years since the attack on the Capitol, the former president has increased his glorification of the rioters, some of whom were convicted of assaulting police.
He has also spread misinformation and conspiracy theories about the deadly violence.
Trump on Thursday repeated the falsehood that there were "no guns" on Jan. 6, even though court records, trial testimony and accounts from police officers and rioters have shown that several people brought firearms into the area between the White House and the Capitol and six Men were arrested that day for possessing weapons near the Capitol.
Former President Trump blames Nancy Pelosi for storming the Capitol
He also tried to shift blame for the attack onto then-Speaker Nancy Pelosi.
“I believe it was an insurrection caused by Nancy Pelosi,” he said.
Trump has in the past falsely accused Pelosi of being in charge of security at the Capitol and claimed he offered National Guard troops, a claim other officials contradict.
It became clear in court on Thursday that the question of whether the former president should be allowed to return to office is not the only question the justices have to decide that could affect Trump's political future.
When Kavanaugh tried to get his lawyer to acknowledge that a candidate can be disqualified from holding office if he is prosecuted and convicted of sedition, Mitchell agreed.
However, he added that his client argued that he enjoyed presidential immunity and would not admit that he could be prosecuted for his conduct around January 6th.
Trump on Supreme Court debate – “nice to see in many ways”
Trump is expected to ask the Supreme Court by Monday to overturn a decision this week by the U.S. Court of Appeals for the D.C. Circuit that said he is not protected by presidential immunity from prosecution for attempting to do so has to prevent Biden's victory in 2020.
The justices have separately said they will review the validity of a law that was used to charge hundreds of people in connection with the Jan. 6 insurrection and that is also a key element of Trump's four-judge federal election interference trial in Washington.
A sign of the importance of the case heard in the Supreme Court on Thursday was that the courtroom was filled with many of the judges' guests, high-profile visitors and dozens of journalists.
Among those in attendance was Rep. Jamie Raskin (D-Md.), who helped lead the impeachment trial against Trump.
Trump told reporters at Mar-a-Lago that the debate was "beautiful to watch in many ways."
“I think the presentation today was very good,” he said.
“I think it was well received.
I hope it was well received.”
To the authors
Ann Marimow
covers the Supreme Court for The Washington Post.
She has worked for the Post since 2005 and has written about legal matters and the federal judiciary for a decade.
She previously covered state government and politics in California, New Hampshire and Maryland.
Patrick Marley
writes about election issues in the Upper Midwest for The Washington Post.
He previously covered the Wisconsin Capitol for the Milwaukee Journal Sentinel.
Isaac Arnsdorf, Rachel Weiner and Amy B Wang contributed to this report.
We are currently testing machine translations. This article was automatically translated from English into German.
This article was first published in English on February 9, 2024 at the “Washingtonpost.com” - as part of a cooperation, it is now also available in translation to readers of the IPPEN.MEDIA portals.