On Thursday, the Supreme Court expressed significant doubt over Colorado’s authority to exclude former President Donald Trump from the Republican primary ballot, citing his efforts to contest the 2020 election outcomes.
Throughout the two-hour hearing, the majority of justices seemed to lean towards the view that states lack the jurisdiction to disqualify a presidential candidate based on the Constitution’s 14th Amendment, which prohibits individuals who have “engaged in insurrection” from holding office.
The Supreme Court, holding a 6-3 conservative majority, addressed a series of unprecedented and significant legal questions related to Section 3 of the 14th Amendment, a provision established following the Civil War.
Justice Neil Gorsuch critically challenged Jason Murray, the attorney representing Norma Anderson and a group of Colorado voters, over their efforts to prevent Trump from appearing on the ballot. Gorsuch’s interrogation brought into sharp relief the constitutional nuances at play regarding the interpretation of Section 3 of the 14th Amendment.
“How does that work, given that section 3 speaks about holding office, not who may run for office?” Gorsuch probed.
The exchange delved deeper into the constitutional framework, with Gorsuch questioning whether states could extend disqualification criteria beyond the Constitution’s qualifications clause.
“Could they do it without section 3? Could they disqualify somebody for, you know, on whatever basis they wanted outside of the qualifications clause?” Gorsuch asked, signaling concerns about the potential for states to overstep constitutional boundaries in determining candidate eligibility.
“I just wanted to give you a chance to respond to it because it seems to me that you’re asking to enforce in an election context a provision of the Constitution that speaks to holding office,” Gorsuch noted, further questioning the alignment of Colorado’s argument with constitutional principles.
Justice Brett Kavanaugh also weighed in on the debate, addressing the legal framework surrounding the disqualification of individuals from holding federal office due to insurrection. Kavanaugh pointed out a significant gap in the application of the law.
“President Trump has not been charged with [insurrection],” Kavanaugh explained. “Some of the rhetoric of your position seems to suggest unless the states can do this, no one can prevent insurrectionists from holding federal office.”
“But obviously Congress has enacted statutes, including one still in effect, section 2383 of title 18, prohibits insurrection. It’s a federal criminal statute and if you’re convicted of that you are, it says, shall be disqualified from holding any office,” he elucidated.
In a particularly tense moment, Gorsuch addressed the automatic nature of disqualification purported by Murray. “Why? On what theory? Because Section 3 speaks about disqualification from holding office. You say he is disqualified from holding office from the moment it happens…”
“Correct, but nevertheless…” Murray began before Gorsuch continued his line of questioning.
“So it operates, you say there’s no legislation necessary. I thought that was the whole theory of your case? And no procedure, it happens automatically,” Gorsuch said.
Gorsuch’s frustration became evident as he addressed Murray’s attempt to invoke the de facto officer doctrine, which aims to validate actions taken by individuals believed to hold office legitimately. “No, de facto, that doesn’t work Mr. Murray because de facto officer is to ratify the conduct that’s done afterwards and insulate it from judicial review. Put that aside, I’m not going to say it again, put it aside, okay?”
Furthermore, Gorsuch challenged Murray to consider the practical implications of their argument on the obedience of lower officials to a disqualified president. “I think Justice Lee is asking a very different question, a more pointed one, a more difficult one for you, I understand, but I think it deserves an answer. On your theory, would anything compel a lower official to obey an order from, in your view, the former president?”
“No, no, we’re talking about section 3. Please don’t change the hypothetical, okay? Please don’t change the hypothetical. I know I like doing it too, but please don’t do it!”