OPINION: This article may contain commentary which reflects the author's opinion.
Conservative U.S. Supreme Court Justice Samuel Alito argued on Thursday that Colorado’s ban on former President Donald Trump’s ability to run for president is “quite severe.”
During oral arguments before the nation’s highest court, Alito questioned Trump’s attorney, Jonathan Mitchell, about whether Colorado was enacting legislation that applied to other states or maybe all states.
“Suppose there is a country that proclaims again and again and again that the United States is its biggest enemy, and suppose that the president of the United States for diplomatic reasons think it is in the best interest of the United States to provide funds or release funds so that they can be used by that country, could a state determine that person has given aid and comfort to the enemy and therefore keep that person off of the ballot?” Alito asked.
Mitchell retorted that Colorado does not follow the legal doctrine of collateral estoppel or issue preclusion, which forbids a party from re-litigating a matter that has already been determined in a previous court case, so it does not establish a precedent for other states.
The Supreme Court will determine whether Colorado can remove Trump from the ballot for inciting rebellion. Under the same insurrection clause, Maine has also barred Trump from the ballot, and a ruling by the Supreme Court could end Trump’s appeal as well as cases in other states.
Supreme Court Justice Samuel Alito smacks Joe Biden during Donald Trump’s 14th Amendment Case before SCOTUS.
“Suppose there is a country that proclaims again and again and again that the United States is its biggest enemy, and suppose that the president of the United States for… pic.twitter.com/3s4onZ1ewR
— Conservative Brief (@ConservBrief) February 8, 2024
In December, the highest court in Colorado effectively declared that Trump had engaged in insurrection in connection with the events of January 6, 2021, when his followers stormed the Capitol building amid the certification of the 2020 presidential election results. With a vote of 4–3, the state court declared that it had not reached its decision “lightly” and that it was “mindful of the magnitude and weight of the questions now before us.”
The decision is on hold while the Supreme Court considers an appeal. There hasn’t been a criminal conviction of Trump for insurrection.
The court in Colorado ruled that Trump’s “direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary.”
“Put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam,” Trump’s attorneys pleaded with the justices in their opening brief to the court.
Senate Minority Leader Mitch McConnell and Senator Ted Cruz are among the members of the House and Senate who have supported Trump’s appeal to the nation’s highest court.
Among the 177 members of Congress who have endorsed Trump, Speaker Mike Johnson and the MAGA Republicans back the appeal in the House.
The appointment of Chief Justice John Roberts and six other justices by Republican presidents may work to Trump’s advantage. Trump appointed three of them: Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch.
The interpretation of a minor portion of the Fourteenth Amendment will be central to the decision. According to Section Three, an individual involved in an insurrection is not eligible to run for Congress, become an elector, “or hold any office, civil or military.”
The goal of this post-Civil War legislation was to keep Confederate state officials from rising to positions of authority.
Section Three proponents argue that it makes it obvious that an individual who attempts an insurrection is unfit to hold a position of authority. However, the Colorado ruling’s detractors argue that because it makes no mention of the presidency, it doesn’t apply to Trump.
The court could decide not to reach a decision on the matter, which might cause it to linger until later in the year, or it could decide to leave it open-ended until after the 2024 presidential election is over.