In closely watched arguments at the U.S. Supreme Court last Thursday, many of the justices questioned the broad impact of a Colorado Supreme Court ruling that would disqualify former President Donald Trump from that state’s primary ballot.
The arguments lasted more than two hours in the case, Trump v. Anderson, and the discussion ranged from examining the applicability of obscure Reconstruction-era court decisions to the impact that upholding the Colorado decision might have on the 
2024 presidential election.
Link: Read the Arguments Transcript
Norma Anderson, a Colorado elector, and other residents sued to have Trump disqualified from the Colorado primary under Section 3 of the 14th Amendment, claiming the amendment’s language barred someone from office who took part in an insurrection against the government and who had sworn an oath to protect the Constitution.
The justices dealt with several arguments in the case, including whether the presidency and president fall within the meaning of the words “office” and “officer” under the 14th Amendment; the impact of a circuit court decision from 1869 called Griffin’s Case, which interpreted Section 3; and whether there was a need for Congress to pass legislation enabling the process to disqualify Trump at a state level.
Justices Question Power of States over Presidential Elections
But throughout the argument, there was a clear and consistent line of questioning on the extent to which a state, in this case Colorado, can regulate eligibility for a presidential election.
For instance, Chief Justice John Roberts and Justice Elena Kagan raised the overall question of how Colorado’s ability to bar a candidate could be used as a precedent in many other states—including some states that have threatened to retaliate by barring other candidates if Trump’s ineligibility is upheld. In response to a statement from Jason Murray, the counsel for Norma Anderson, Kagan took a broad look at the decision’s potential impact.
“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[. . .] this question of whether a former president is disqualified for insurrection to be president again [. . . .] sounds awfully national to me.”
Roberts followed Kagan with a similar question.
“What do you do with what would seem to me to be plain consequences of your position? Roberts asked. “If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side. And some of those will succeed. A goodly number of states will say, whoever the Democratic candidate is, you’re off the ballot. And others for the Republican candidate, you’re off the ballot. …. That's a pretty daunting consequence.”
When Murray labeled such potential rulings as “potential frivolous applications of a constitutional provision,” Roberts responded sharply. “You might think they’re frivolous, but the people who are bringing them may not think they’re frivolous. Insurrection is a broad, broad term. And if there’s some debate about it, I suppose that will go into the decision and then eventually, what, we would be deciding whether it was an insurrection when one president did something as opposed to when somebody else did something else?” Roberts said. “Do we wait until near the time of counting the ballots and sort of go through which states are valid and which states aren’t?”
Questions about Disqualification
Other justices raised similar doubts about the Colorado decision and its widespread impact.
“I’m just trying to get you to grapple with what some people have seen as the consequences of the argument that you’re advancing, which is that there will be conflicts in decisions among the states, that different states will disqualify different candidates,” Justice Samuel Alito told Murray, which Alito called “an unmanageable situation.”
Justice Ketanji Brown Jackson doubted the lawmakers who wrote the 14th Amendment in the late 1860s intended for a potential scenario where individual states would disqualify presidential candidates: “I guess my question is why the Framers would have designed a system that could result in interim dis-uniformity in this way where we have elections pending and different states suddenly saying you’re eligible, you’re not, on the basis of this kind of thing?”
Justice Amy Coney Barrett raised a similar concern: “If we affirmed and we said [Trump] was ineligible to be president, yes, maybe some states would say well, you know, we’re going to keep him on the ballot anyway but, I mean, really it's going to have, as Justice Kagan said, the effect of Colorado deciding.”
Toward the end of deliberations, the justices returned to the question of states making their own decisions about the eligibility of presidential candidates. Colorado Solicitor General Shannon Stevenson argued the Constitution’s Electors Clause gave “far-reaching powers” to Colorado lawmakers to direct “Colorado’s courts to resolve any challenges to the listing of any candidate on the presidential primary ballot before Coloradans cast their votes.”
Kagan asked Stevenson if Trump’s disqualification would be the same as disqualifying a candidate as not meeting Article II’s requirements for age and time of residency. When Stevenson said that was the case, Kagan posed several hypothetical statements.
“What if I were to push back on that and say, well, this disqualification, number one, it's in the 14th Amendment, and the point of the 14 Amendment was to take away certain powers from the states? Number two, Section 3 itself gives Congress a very definite role, which [Trump’s counsel] says is interfered with by the ability of states to take somebody off the ballot? And maybe, number three, it’s just more complicated and more contested, and, if you want, more political? And why don't all of those things make a difference in our thinking about this qualification as opposed to any other?”
Alito followed with a similar question: “We have been told that if what Colorado did here is sustained, other states are going to retaliate, and they are going to potentially exclude another candidate from the ballot. What about that situation?”
“I think we have to have faith in our system that people will follow their election processes appropriately, that they will take realistic views of what insurrection is under the 14th Amendment. This Court may review some of them. But I don't think that this Court should take those threats too seriously in its resolution of this case,” Stevenson responded.
Justice Sonia Sotomayor seemed skeptical about one argument made by Trump’s attorney, Jonathan Mitchell, that Chief Justice Samuel Chase’s circuit court decision in Griffin required Congress to pass enabling legislation to allow states to disqualify insurrectionists.
“It was a circuit court decision by a justice who, when he becomes a justice, writes in the Davis case, he assumed that Jefferson Davis would be ineligible to hold any office, particularly the presidency, and treated, and this is his words, as executing itself, needing no legislation on the part of Congress to give it effect. So you're relying on a non-precedential case by a justice who later takes back what he said.”
The timeframe for decision in Trump v. Anderson is unknown, but the Colorado primary is held in early March, and Trump’s name is on the ballot, pending a decision in the case.
Scott Bomboy is the editor in chief of the National Constitution Center.
