WASHINGTON, DC – Former President Donald Trump appears to be headed for a massive victory at the Supreme Court on the Colorado case over his eligibility to be the on the 2024 ballot, after the beating the lawyers against him received Thursday from the justices.
The liberal Colorado Supreme Court sided with Colorado Secretary of State Jena Griswold by a 4-3 vote, holding that Trump engaged in insurrection and that Section 3 of the Fourteenth Amendment thus disqualified him from running for president in 2024.
Trump’s lawyers reject the accusation that Trump’s actions amount to insurrection and appealed on a host of issues, including whether Section 3 applies to presidential candidates at all, whether it requires Congress to pass a law to consider disqualification, whether states have any right of action to make their own determinations on this issue, and whether Trump was denied due process in Colorado.
It appears clear that Trump is about to win big, likely either 8-1 or even a unanimous 9-0 decision. Such a decision would very likely boost his lead in the polls as the presidential election swings into high gear.
One point several justices appeared to agree with is that the president is not an officer of the United States. That term instead refers to federal officers appointed by a president, not the president himself. Various provisions in the Constitution, like the Appointments Clause, the Commission Clause, and the Impeachment Clause, mention the president separately from “officers of the United States” or an office “under the United States,” and Section 3 should be interpreted consistent with those other provisions.
Justice Clarence Thomas questioned the lawyer representing the Colorado voters seeking to disqualify Trump what historical examples they could point to about state officials or state courts declaring national candidates ineligible on the ballot. That lawyer, Jason Murray, had none.
“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?,” Chief Justice John Roberts said as a follow-up, listing various protections in the Fourteenth Amendment. “States shall not abridge [citizens’] immunity, they won’t deprive people of property without due process, they won’t deny equal protection. And on the other hand, it augmented federal power under Section 5. Congress has the power to enforce [the Amendment through legislation].”
Murray later argued the point that states have the power to disqualify presidential candidates and that the Supreme Court need not be concerned about setting a dangerous precedent because this provision has gone virtually unused for 155 years.
Justice Brett Kavanaugh would have none of it. Referencing a court decision from the year after the Fourteenth Amendment’s ratification in 1868, Kavanaugh pushed back:
On your point it that it’s been dormant for 155 years, I think the other side would say the reason for that is Chief Justice Chase’s opinion in 1869 in Griffin’s Case to start, which says that Congress has the authority here, not the states. That’s followed up by the Enforcement Act of 1870, in which Congress acts upon that understanding, which is followed – and there’s no history contrary in that period, as Justice Thomas pointed out – there’s no history contrary in all the years leading up to this of states exercising such authority. I think the reason it’s been dormant is because there’s been a settled understanding that Chief Justice Chase, even if not right in every detail, was essentially right, and the branches of the government have acted under that settled understanding for 155 years. And Congress can change that. And Congress does have [18 U.S.C. § 2383], of course, the Insurrection Act, a criminal statute. But Congress could change it, but they have not, in the 155 years, in relevant respects for what you want here today, at least.
Kavanaugh separately made the point that regarding the insurrection crime referenced in that exchange, Section 2383, Trump has never even been charged with that crime, to say nothing about being convicted under it.
For her part, Justice Elena Kagan expressed concern about adopting a view of the Constitution that might allow a single state to determine the outcome of a presidential election. As she explained her concern:
But maybe put most boldly, 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?
Justice Samuel Alito gave his own example highlighting the danger of such an approach:
Well, let me ask you a question about whether the power that you’ve described as plenary really is plenary. Suppose that the outcome of an election for president comes down to the vote of a single state, how the electors of the vote of a single state are going to vote. And suppose that candidate A gets a majority of the votes in that state, but the legislature really doesn’t like Candidate A, thinks Candidate A is an insurrectionist, so the legislature then passes a law [three days before election] ordering its electors to vote for the other candidate.
When pressed, Murray responded by saying that the state legislature would indeed have such power.
Justice Neil Gorsuch drilled down on other problems with the arguments made by Colorado and Democrats, specifically the argument that Section 3 is “self-executing” on such a level that it immediately takes effect when triggering events occur. If that were true, Gorsuch said, then Trump was no longer the commander-in-chief for his last two weeks in office after January 6, 2021, and none of his actions had legal authority.
When Murray rejected Gorsuch’s point that military commanders and other officials would no longer have to obey Trump’s orders, Gorsuch responded:
Why not? You say he’s disqualified from the moment it happens. Now, I understand the de facto officer doctrine might be used to prohibit people from seeking judicial remedies for decisions that take place after the date he was disqualified. But if he is, in fact, disqualified, from that moment, why would anybody have to obey a direction from him?
Some were surprised when Justice Ketanji Brown Jackson expressed concern over the point that the office of president is not named among the various positions like senator or representative that are listed as positions from which a person is disqualified if they engaged in insurrection. (Author’s disclosure: That point was thoroughly discussed in an amicus brief that I coauthored on behalf of former U.S. Attorneys General Ed Meese, Michael Mukasey, and Bill Barr, among others.)
As Jackson put it:
But then why didn’t they put the word “president” in the very enumerated list in Section 3? 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. And so I guess that just makes me worry that maybe they weren’t focusing on the president and, for example, the fact that electors of vice president and president are there suggests that really what they thought was if we’re worried about the charismatic person [running for president], we’re going to bar insurrectionist [presidential] electors [included on that list] and, therefore, that person [running for president] is never going to rise [to the office]?
When Murray did not offer a persuasive answer, Jackson pressed, “The language here doesn’t seem to include ‘president.’ Why is that?”
For her part, Justice Amy Coney Barrett expressed concern about the lack of due process in the proceedings that declared Trump invalid. Of all nine justices, only Justice Sonia Sotomayor did not offer a hint of which way she was leaning.
If this victory is as lopsided as Thursday’s argument would suggest, it presents an interesting question for Chief Justice Roberts. The senior justice in the majority assigns who writes the court’s opinion, and the chief is the most senior member of the court.
Roberts has assigned recent major election matters to himself, and could well do so for this extraordinary and historic case. But if he assigns it to a liberal justice in the majority — such as Justice Jackson, appointed by President Joe Biden — it would completely shut the door on attempts to characterize this decision as any sort of partisan or ideological decision, satisfying all but the most wide-eyed activists on the Far Left.
But regardless of the authorship, this is no longer an urgent case. The briefing and argument were completed on an emergency basis, but now that Trump has become the presumptive Republican nominee, and it is clear that the court will not rule that he is eligible to stay on the ballot, the justices can focus on writing a meticulous and detailed opinion that will stand the test of time.
Time is one thing the justices have on their side. The term ends the last week of June, so the decision will come down before both political parties’ nominating conventions and the formal general election campaign.
The case is Trump v. Anderson, No. 23-719 in the Supreme Court of the United States.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department. Follow him on X (formerly Twitter) @kenklukowski.