The justices were largely skeptical of Colorado’s arguments.
Murray was repeatedly grilled by justices about why Section 3 of the amendment should apply to the presidency when that office isn’t explicitly listed in the provision
Several of the justices also expressed concern that allowing Colorado to ban Trump from the ballot could result in retaliatory efforts by other states to keep a Democrat off the ballot under the same provision
Justice Brett Kavanaugh made the point that Trump, who’s been criminally charged over his attempt to overturn the 2020 election, isn’t accused of insurrection in that case, even though the Justice Department could have done so.
Notably, the so-called 'liberal' justices were just as sceptical as the 'far-right' ones.
Justice Ketanji Brown Jackson asked Mr. Murray about the lack of uniformity this decision could create.
“Why should a single state get to decide who gets to be the President of the United States?” asked Justice Elena Kagan.
“That means is quite extraordinary.”
Trump was pleased with the arguments, calling it a “beautiful thing to watch in many respects.”
The former president, who listened to the oral arguments on cable news from his Mar-a-Lago club, spoke to the press in Florida.
“I thought it was a very beautiful process,” he said.
“I hope that democracy in this country will continue because right now we have a very, very tough situation with all of the radical left ideas.”
Jonathan Turley summed it up perfectly:
The argument is now over. The disqualification advocates may have expected a cold reception, but this was perfectly glacial. Notably, some of the toughest and most skeptical questions came from the left of the Court.— Jonathan Turley (@JonathanTurley) February 8, 2024
* * *
Live Update (h/t @JonathanTurley):
A great deal of technical to-ing and fro-ing to start the hearing, and then Sotomayor seemed to embarrass herself again:
...Justice Sotomayor just asked Mitchell is he "is setting up" the possibility of some president running for a third term to bar the states on term limits.
Mitchell responded "of course not."
...There appears to be confusion on the Court.
Mitchell was referring to "Term Limits" as in U.S. Term Limits, Inc. v. Thornton. Sotomayor asked why he kept referring to the qualification of term limits in the Congress.
Roberts stepped in to clarify that this was a reference to the case.
...Justice Sotomayor just said that Trump is making a "gerrymandered rule" that would interpret the rule as not applying to Trump...
Judge Jackson then pushed the 'insurrection' narrative:
...Jackson demanded to know why Mitchell didn't believe it was an insurrection, and is asking why it must be an "organized effort" as opposed to "a chaotic effort."
Mitchell called Jan. 6th "shameful" but explained that it was not an insurrection.
Mitchell did an excellent job.
Then, attorney Jason Murray, who represents the Colorado voters who are the technical plaintiffs in this case, came under siege
...Thomas is first up and noting that there is at best one case whether this power was used despite the bitter and divisive time.
He notes that one would expect national candidates to be disqualified if this reading was correct that states could use this power...
...Chief Justice Roberts asked a deadly question of why the 14th Amendment (which is designed to limit the power of states) would be used to enhance this power of the states.
He suggested that Murray's arguments are "ahistorical."
...Kavanaugh just agreed with Roberts that there is "no historical evidence" to support this interpretation of Section 3 in terms of state power.
...Kagan just asked "why a single state could decide who is president of the United States...
"if you were not from Colorado ... that seems quite extraordinary, doesn't it."
...Kagan's question is what the disqualification advocates did not want to hear from her. She could be key in securing a heavy majority or unanimity in rejecting this decision...
...Barrett is joining the pile on and saying that, under Murray's argument, they are "stuck" with the record of the state. She noted that "it just doesn't seem like a state call."
...Barrett is laying waste to the argument that they should just watch the tape of Jan. 6th and reach their own conclusions...
...Chief Justice Roberts is raising how a ruling in favor of disqualification would create a "daunting prospect" of tit-for-tat moves by states. Roberts laid out why this would be madness in sorting out elections.
...Roberts is saying "you are avoiding the question" in the obvious danger of states differing on what constitutes an insurrection.
...Murray argument is turning in a running of the gauntlet with justices lined up to develop serious blows to the disqualification arguments and their implications...
...Justice Alito just asked Murray if military officers could have refused to take orders from a president who engaged in insurrection. Murray suggested no. But Gorsuch jumped in to say you said he was disqualified "from the moment it happens." This is a hit below the waterline for Murray and he is struggling.
...Gorsuch is delivering the coup de grace to ask why he was not immediately disqualified without any due process. "On your theory, would anything compel a lower official to object a former president.?" He then hit Murray for "trying to change the hypothetical.
...Kagan is again raising what must be concerning questions for the disqualification advocates. She is saying that Murray is ignoring the "broader principle" limiting the power of states on national questions like this one. "What's a state doing deciding who other citizens get to vote for president?"
Murray is taking on water again. Justices keep pushing him to the edges of the map and he is struggling on the implications.
...Alito is raising the anti-democratic aspects of the effort and "the effect of disenfranchising voters to a significant degree."
...Jackson is again raising the lack of uniformity in states using this power.
She is again asking whether presidential elections should be excluded and indicated that she is still not satisfied on that point.
"Why didn't they put president . .. on the list."
This is a significant problem for disqualification advocates.
The questions suggest that Jackson does see a real problem on the first question.
As Turley points out, "...Murray is finally done. That was rough."
It's not going well for the NeverTrumpers...
* * *
Today, at 10amET, the Supreme Court will rule on Colorado’s efforts to get former President Trump off the 2024 ballot for “insurrection or rebellion”.
A Wall Street Journal editorial calls for a 9-0 vote to strike it down.
Additionally, as RaboBank's Michael Every notes, within days we may then see how the Supreme Court feels about the D.C. appeals court ruling over Trump’s January 6 court case, which struck down his claim to immunity: as the Journal op-eds separately, while Trump’s defence is “legal sophistry… the sweeping nature of the ruling means that it also risks weakening the office of the Presidency, so perhaps at least four Supreme Court Justices will be interested in having the last word.”
In short, more twists and turns to come(?)
But, this morning, all eyes and ears will be focused on whether Democracy is in danger from a decision by SCOTUS and Jonathan Turley - the Shapiro Professor of Public Interest Law at George Washington University - will be providing live coverage of the Supreme Court arguments.
When I am not on air, I will be doing my usual running analysis on Twitter/X.
...The Court has long struggled with the aftermath of that decision and does not relish the chance to again enter the fray of a close presidential election. https://t.co/OATI29AFoT— Jonathan Turley (@JonathanTurley) February 8, 2024
I have been a vocal critic of the theory under Section 3 as textually and historical flawed.
It is also, in my view, a dangerously anti-democratic theory that would introduce an instability in our system, which has been the most stable and successful constitutional system in the world.
You will be hearing arguments from:
Jonathan Mitchell, who is representing Trump. He is a Texas lawyer who has previously argued before the Court.
Jason Murray, who is representing Republican voters who want to disqualify Trump. Murray clerked for Justice Elena Kagan and also then judge Neil Gorsuch on the Tenth Circuit.
Shannon Stevenson, who is the Colorado Solicitor General. Stevenson only recently became solicitor general and was previously in private practice.
We can expect the justices to focus on the three main questions before the Court:
1. Is the president “an officer of the United States” for purposes of section 3?
2. Is section 3 self-executing?
3. Was January 6th an “insurrection” under Section 3.
You will likely hear references to Griffin’s Case in the arguments. Not long after ratification in 1869, Chief Justice Salmon P. Chase ruled in a circuit opinion that the clause was not self-executing. He suggested that allowing Congress to simply bar political opponents from office would be a form of punishment without due process and would likely violate the prohibition on bills of attainder.
You will also likely hear comparisons to other sections and how this case could impact the meaning of terms like “officers” and “offices.” For example, the Appointments Clause gives a president the power to “appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” That creates a tension with defining, as do those pushing this theory, that a president is also an officer of the United States. Most of the advocates simply argue that the meaning is different.
You may also hear references to the Incompatibility Clause which provides, “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” U.S. Const. Art. I, § 6. Critics have noted that the proponents of this theory argue that the Speaker and Senate President Pro Tempore are “Officers of the United States.” Indeed, they reject any difference between an “Officer of the United States” and an “Office under the United States.”
However, this creates tension with members serving as Speakers and Senate Presidents Pro Tempore since those positions are also “Offices under the United States.”
Some of the argument will clearly focus on the history and context for this amendment.
These members and activists have latched upon the long-dormant provision in Section 3 of the 14th Amendment — the “disqualification clause” — which was written after the 39th Congress convened in December 1865 and many members were shocked to see Alexander Stephens, the Confederate vice president, waiting to take a seat with an array of other former Confederate senators and military officers.
Justice Edwin Reade of the North Carolina Supreme Court later explained, “[t]he idea [was] that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again.”
So, members drafted a provision that declared that “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.”
Jan. 6 was a national tragedy. I publicly condemned President Trump’s speech that day while it was being given — and I denounced the riot as a “constitutional desecration.” However, it has not been treated legally as an insurrection. Those charged for their role in the attack that day are largely facing trespass and other less serious charges — rather than insurrection or sedition. While the FBI launched a massive national investigation, it did not find evidence of an insurrection. While a few were charged with seditious conspiracy, no one was charged with insurrection. Trump has never been charge with either incitement or insurrection.
The clause was created in reference to a real Civil War in which over 750,000 people died in combat. The confederacy formed a government, an army, a currency, and carried out diplomatic missions.
Conversely, in my view, Jan. 6 was a protest that became a riot.