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WASHINGTON — The Supreme Court on Thursday signaled deep skepticism that Colorado had the power to remove former President Donald Trump from the Republican primary ballot because of his actions trying to overturn the 2020 election results.
A majority of the justices appeared during the two-hour argument to think that states do not have a role in deciding whether a presidential candidate can be barred from running under a provision of the Constitution’s 14th Amendment that bars people who “engaged in insurrection” from holding office.
Justices raised concerns about states reaching different conclusions on whether a candidate could run and several indicated that only Congress could enforce the provision at issue.
The Supreme Court, which has a 6-3 conservative majority, is tackling several novel and consequential legal issues concerning Section 3 of the 14th Amendment, enacted in the wake of the Civil War.
Under that provision, aimed at preventing former Confederates from returning to power in the U.S. government, anyone who had previously served as an “officer of the United States” and was then involved in an insurrection would be barred from holding federal office.
Chief Justice John Roberts said that the “whole point” of the 14th Amendment was to restrict state power after the Civil War and questioned why it would give states the ability to kick a presidential candidate off the ballot.
Taking a similar approach, conservative Justice Brett Kavanaugh said it was clear from the entirety of the 14th Amendment that “Congress has the primary role here,” citing a Civil War-era ruling that marked an early interpretation of the provision.
Justices also wondered about the practical implications of allowing the provision to be interpreted on a state-by-state basis.
“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,” Justice Elena Kagan, one of the three liberal justices, told Jason Murray, the lawyer representing Colorado voters.
“It seems quite extraordinary doesn’t it?” she added.
Justice Amy Coney Barrett, a conservative, echoed that sentiment, saying “it just doesn’t seem like a state call.”
Conservative Justice Samuel Alito was among those who called states reaching differing conclusions on the issue an “unmanageable situation.”
Roberts predicted that if the Colorado ruling was upheld, some states would then kick other presidential candidates off the ballot, both Republicans and Democrats, and sow chaos in presidential elections.
“That’s a pretty daunting consequence,” he said.
Justice Ketanji Brown Jackson, one of the liberals, appeared to agree, asking why the authors of the 14th Amendment “would have designed a system that would could result in interim dis-uniformity in this way, where we have elections pending and different states suddenly saying, ‘You are eligible, you’re not.’”
The Colorado Supreme Court ruled in December that Trump could be thrown off the Republican primary ballot but put its decision on hold while he appealed.
The case would have broad implications if Trump loses, because other states could follow suit, placing hurdles in the way of his attempt to regain the presidency this fall. State officials in conservative-controlled governments have also warned they could seek to remove President Joe Biden from the ballot in response.
Trump, who has often attended recent court hearings in the various civil and criminal cases he is involved in, was not in the courtroom Thursday.
The legal challenge was filed on behalf of six Colorado residents, four of whom are Republicans, by the left-leaning government watchdog group Citizens for Responsibility and Ethics in Washington and two law firms.
They allege in court papers that Trump “intentionally organized and incited a violent mob to attack the United States Capitol in a desperate attempt to prevent the counting of electoral votes cast against him.”
Trump’s lawyers have offered several grounds for tossing out the lawsuit. They argue that the president is not an officer of the U.S., that Trump did not engage in insurrection and that only Congress can enforce Section 3.
The justices were hearing from lawyers representing Trump, the Colorado plaintiffs and Colorado Secretary of State Jena Griswold, the state’s top election official.
The conservative majority includes three justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — appointed by Trump. Another conservative, Justice Clarence Thomas, has faced scrutiny over his involvement in the case because of the role of his wife, conservative political activist Virginia “Ginni” Thomas, in backing Trump’s challenge to the election results. Some Democrats had asked Thomas to recuse himself.
Despite the court’s conservative majority, it has regularly handed losses to Trump since he left office.
Interest in the Colorado case was heightened when Maine’s top election official concluded that Trump was ineligible to appear on the Republican primary ballot in that state, too. Like the Colorado dispute, that case was put on hold, meaning Trump remains on the ballot for now in both states.
The Supreme Court is hearing the Colorado case on an expedited schedule, with a ruling expected within weeks. Colorado is one of more than a dozen states that have their primary elections on March 5.
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