WASHINGTON - The Supreme Court heard arguments Thursday about whether Donald Trump can remain on the 2024 ballot for president in Colorado, and it sounds like the justices were skeptical of the state's effort to keep him off the ballot.
Referencing the January 6 Capitol riot, the Colorado Supreme Court already ruled that the former president violated a constitutional provision known as Section 3 of the 14th Amendment, which targets those who "engaged in insurrection."
It's the first time in history that the nation's highest court heard a case on Section 3, which was used to keep former Confederates from holding government offices after the amendment's 1868 adoption. It fell into disuse after Congress granted an amnesty to most ex-rebels in 1872.
Why does this matter?
A definitive ruling for Trump would largely end efforts in Colorado, Maine and elsewhere to prevent his name from appearing on the ballot for president this year.
A decision upholding the Colorado decision would amount to a declaration from the Supreme Court that Trump did engage in insurrection and is barred by the 14th Amendment from holding office again. That would allow states to keep him off the ballot and imperil his campaign.
The justices could opt for a less conclusive outcome, but with the knowledge that the issue could return to them, perhaps after the general election in November and in the midst of a full-blown constitutional crisis.
The court has signaled it will try to act quickly, dramatically shortening the period in which it receives written briefing and holds arguments in the courtroom.
Demonstrators outside the US Supreme Court in Washington, DC, US, on Thursday, Feb. 8, 2024. (Nathan Howard/Bloomberg via Getty Images)
What happened in court Thursday?
In arguments ticking past 90 minutes, both conservative and liberal justices raised questions of whether Trump can be disqualified.
Concerns included whether Congress must act before states can invoke Section 3 of the 14th Amendment to prevent former officeholders who "engaged in insurrection" from holding office again. There also were questions about whether the president is covered by the provision.
Without such congressional legislation, Justice Elena Kagan was among several justices who wanted to know "why a single state should decide who gets to be president of the United States."
Eight of the nine justices suggested that they were open to at least some of the arguments made by Jonathan Mitchell, Trump's lawyer at the Supreme Court. Trump could win his case if the court finds just one of those arguments persuasive.
Only Justice Sonia Sotomayor sounded like she might vote to uphold the Colorado Supreme Court ruling that found that Trump "engaged in insurrection" and is ineligible to be president.
There was little talk of whether Trump actually "engaged in insurrection" following the 2020 election, though Mitchell argued that the Capitol riot was not an insurrection and, even if it was, Trump did not participate.
Chief Justice John Roberts worried that a ruling against Trump would prompt efforts to disqualify other candidates, "and surely some of those will succeed."
– Mark Sherman, Associated Press
What is Section 3 of the 14th Amendment?
Section 3 of the 14th Amendment prohibits anyone who swore an oath to support the Constitution from holding office if they’ve engaged in an insurrection.
It was written to keep former confederates from returning to government office.
It reads: "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. But Congress may by a vote of two-thirds of each House, remove such disability."
The provision was used often in the years immediately after the Civil War. The only record of it being used in the 20th century, according to legal scholars, was as justification in refusing to seat a socialist congressman in 1919 because he opposed U.S. involvement in World War I.
A historic first for SCOTUS
It’s the first time in history the provision has been used to prohibit someone from running for the presidency, and the U.S. Supreme Court is likely to have the final say on whether the ruling will stand in Trump’s case.
If it does — which many legal experts say is a long shot — it’s the end of Trump’s campaign because a Supreme Court decision would apply not just in Colorado, but to all states. It also could open a new world of political combat, as politicians in the future fish for judicial rulings to disqualify their rivals under the same provision.
Before the violent Jan. 6, 2021, riot at the Capitol, even many constitutional lawyers rarely thought about Section 3, a provision that isn't taught at most law schools and hadn't been used in court for more than 100 years.
The Supreme Court has never ruled on the meaning of Section 3.
The high court could rule in a variety of ways — from upholding the ruling to striking it down to dodging the central questions on legal technicalities. But many experts warn that it would be risky to leave such a vital constitutional question unanswered.
Law enforcement officers outside the US Supreme Court in Washington, DC, US, on Thursday, Feb. 8, 2024. Photographer: Nathan Howard/Bloomberg via Getty Images
Jan. 6, 2021: The Capitol riot
Hundreds of people have been convicted in the massive prosecution of the Capitol riot in the past three years.
Cases from members of the far-right extremist groups such as The Proud Boys, former police officers and current members of the U.S. military have kept Washington’s federal courthouse flooded with trials, guilty plea hearings and sentencings that stemmed from what has become the largest criminal investigation in the country’s history.
And Trump isn’t immune to the investigation.
In 2023, Trump was indicted on felony charges for working to overturn the results of the 2020 election in the run-up to the violent insurrection carried out by many of his supporters on Jan. 6, 2021.
The four-count indictment, the third criminal case against Trump, provided deeper insight into a dark moment that has already been the subject of exhaustive federal investigations and captivating public hearings. It chronicles a months-long campaign of lies about the election results and says that, even when those falsehoods resulted in a chaotic insurrection at the Capitol, Trump sought to exploit the violence by pointing to it as a reason to further delay the counting of votes that sealed his defeat.
Trump claims he did nothing wrong and has said this case was concocted as an attempt to hurt his 2024 presidential campaign. His lawyers have argued the case should be dismissed because Trump is immune from prosecution for actions they said were taken in his official role as president. The defense has also argued Trump was within his First Amendment rights to challenge the outcome of the election and to allege that it had been tainted by fraud.
Courts across the country and Trump's own attorney general found there was no widespread fraud that would have changed the results of the election.
The Associated Press contributed to this report. This story was reported from Los Angeles.