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WASHINGTON – After supporters of then-President Donald Trump stormed the Capitol on January 6, 2021, ominous fences were erected to protect surrounding buildings.
One of the buildings that needed protection was the large marble structure in front of the Capitol: the Supreme Court.
But during oral arguments On Thursday, in Colorado’s effort to remove Trump from the Republican primary ballot, the justices asked little about a key question in the case: Was Jan. 6 an insurrection?
Instead, it seems likely that the court ruling in favor of Trump for other reasons, allowing judges to avoid taking sides on such a controversial issue.
Based on the two-hour oral argument, it appeared that there was a majority that would consider that states do not have the authority to enforce Section 3 of the 14th Amendment, which prohibits people who previously held government office and “engaged in insurrection.” occupy public positions. federal office.
The justices asked questions about all sorts of legal technicalities, including whether the president is covered by Section 3 and whether Congress needs to pass legislation to enforce it. Sidestepping the question of insurrection, they also investigated who decides whether an insurrection took place, and several suggested that states should not have that power.
The only judge who directly pressed the insurrection issue was Judge Ketanji Brown Jackson, a liberal appointee of President Joe Biden.
Jackson asked Trump’s lawyer, Jonathan Mitchell, if he would admit that his client had participated in the insurrection.
Mitchell responded by saying, “President Trump did not engage in any act that could plausibly be characterized as an insurrection.”
An insurrection, he added, “must be an organized and concerted effort to overthrow the United States government through violence.”
Jackson seemed incredulous at the narrow definition of the term.
“So your point is that a chaotic effort to overthrow the government is not an insurrection?” she asked.
“This was a riot. It was not an insurrection,” Mitchell responded.
In determining that Trump was ineligible, the Colorado Supreme Court held that Section 3 did apply to the president and that Trump had participated in an insurrection.
Previously, a lower court judge had ruled that there was an insurrection but concluded that Section 3 could not apply.
This followed a five-day hearing in a lower state court in which evidence was presented including tweets from Trump, videos of the events of January 6 and the report issued by the now-defunct House committee that investigated the attack.
A recurring theme during Thursday’s Supreme Court arguments was the court’s sense of unease at the idea that the justices would have to review an avalanche of rulings from state courts like the one in Colorado that ban not only Trump but future presidential candidates run for public office. over accusations that they were involved in an insurrection.
Judge Amy Coney Barrett, one of three Trump appointees to the court, questioned how the justices were supposed to review the evidence that Colorado courts relied on to conclude there was an insurrection.
He wondered if the justices would have to “watch the Ellipse video” and draw their own conclusions, referring to Trump’s Jan. 6 speech in which he encouraged his supporters to march on the Capitol.
Justice Samuel Alito, a fellow conservative, seemed to think along similar lines.
“Should we have our own trial?” she asked.
Alito was one of several judges who expressed concern that other states would reach different conclusions than the Colorado courts, leading to a potentially chaotic election.
At times it seemed like the only person in the courtroom who wanted to talk about how to define an insurrection was Jason Murray, the lawyer representing Colorado voters who say Trump is ineligible.
“We are here because, for the first time since the War of 1812, our nation’s capital came under violent assault,” he said during his keynote address.
The attack, he added, “was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power.”
As far as the Supreme Court is concerned, whether that constitutes an insurrection is likely to remain an open question.
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