Last Thursday, the Supreme Court signaled deep skepticism about Colorado’s power. Colorado sought to remove former President Donald Trump from the Republican primary ballot. This was due to his attempts to overturn the 2020 election results.
During the two-hour argument, a majority of the justices appeared to think. They questioned whether states have a role in such matters. Specifically, they debated the application of the 14th Amendment. This amendment prohibits individuals who have “engaged in insurrection” from holding office.
Justices from various ideological backgrounds expressed worries. They were concerned about the inconsistency of states’ conclusions regarding candidate eligibility. Some justices suggested that only Congress could enforce the relevant provision.
Interestingly, during the argument, the justices barely discussed the core issue. The central question was whether Trump was involved in an insurrection. However, it’s unlikely that the ruling will heavily rely on this matter.
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The Supreme Court, holding a conservative majority of 6-3, is addressing various novel and significant legal matters related to Section 3 of the 14th Amendment, which was established after the Civil War.
Colorado voters initiated a lawsuit asserting that Trump should be disqualified due to his actions against the 2020 election results. This culminated in the events leading to the January 6 attack on the Capitol.
Section 3 of the 14th Amendment was crafted to prevent former Confederates from regaining power in the U.S. government. During the oral argument, justices challenged the notion that the provision could be enforced by states.
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Chief Justice John Roberts emphasized that the essence of the 14th Amendment was to limit state authority after the Civil War, aiming to align Confederate states with federal law. He questioned why states would be granted the power to remove a presidential candidate from the ballot.
“Wouldn’t that be the last place that you’d look for authorization for the states, including Confederate states, to … enforce the presidential election process?” he queried.
Taking a similar sentiment, conservative Justice Brett Kavanaugh highlighted that, according to the language of the 14th Amendment, “Congress has the primary role here.” He referenced a Civil War-era ruling, extensively discussed in the briefing, which provided an early interpretation of the provision.
Justices also raised concerns about the practical consequences of interpreting the provision differently in each state. Justice Elena Kagan, among the three liberal justices, questioned Jason Murray, the lawyer representing Colorado voters, about why a single state should have the authority to determine the president of the United States.
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“It seems quite extraordinary, doesn’t it?” she remarked. Conservative Justice Amy Coney Barrett echoed this sentiment, stating that “it just doesn’t seem like a state call.”
Chief Justice Roberts forecasted that if the Colorado ruling were to stand, it could lead to other states removing various presidential candidates from the ballot, regardless of party affiliation, thereby causing chaos in presidential elections.
“That’s a pretty daunting consequence,” he remarked.
Justice Ketanji Brown Jackson, aligned with the liberal justices, seemed to concur. She questioned why the framers of the 14th Amendment would create a system that could result in temporary disunity, where different states might suddenly declare certain candidates eligible or ineligible while elections are pending.
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