The Supreme Court found itself surrounded by ominous fencing after the Capitol attack on January 6, 2021. However, during oral arguments on Thursday regarding Colorado’s attempt to remove Donald Trump from the Republican primary ballot, the justices chose not to delve into the question of whether January 6 constituted an insurrection.
Instead, it appears that the court is inclined to rule in favor of Trump on other grounds, allowing the justices to sidestep this contentious issue. The two-hour oral argument highlighted a potential majority opinion that states do not possess the authority to enforce Section 3 of the 14th Amendment, which prohibits individuals who engaged in insurrection from holding federal office after previously holding government positions.
The justices explored various legal technicalities, including whether Section 3 applies to the president and if Congress needs to pass legislation to enforce it. While evading the insurrection question, they also questioned who should determine whether an insurrection occurred, with some suggesting that states should not wield that power.
Justice Ketanji Brown Jackson, a liberal appointed by President Joe Biden, was the only justice to directly address the insurrection question. She asked Trump’s lawyer, Jonathan Mitchell, if he would admit that his client engaged in insurrection. Mitchell countered, stating that “President Trump did not engage in any act that can be plausibly characterized as insurrection.” He further defined insurrection as an organized, concerted effort to violently overthrow the government.
Jackson appeared skeptical of this narrow definition, asking, “So your point is that a chaotic effort to overthrow the government is not an insurrection?” Mitchell responded, “This was a riot. It was not an insurrection.”
The Colorado Supreme Court, in ruling Trump ineligible, determined that Section 3 applies to the president and that he engaged in insurrection. Previously, a lower court judge acknowledged an insurrection but concluded that Section 3 could not be enforced. The lower court proceedings included evidence such as Trump’s tweets, videos of the events on January 6, and the report from the now-defunct House committee that investigated the attack.
One recurring theme during the Supreme Court arguments was the unease among the justices about reviewing a series of state court rulings, like the one in Colorado, that prevent not only Trump but also future presidential candidates from running based on their alleged involvement in an insurrection.
Justice Amy Coney Barrett, one of Trump’s appointees, questioned how the justices could review the evidence relied upon by the Colorado courts to determine if an insurrection occurred. She pondered whether they would have to “watch the video of the ellipse” and form their own conclusions, referring to Trump’s speech on January 6, in which he encouraged his supporters to march to the Capitol.
Justice Samuel Alito shared a similar concern. He questioned if they would need to conduct their own trial. Several justices expressed worry about different states reaching contrasting conclusions, potentially leading to a chaotic election.
Jason Murray, the lawyer representing Colorado voters who claim Trump is ineligible, seemingly stood alone in the courtroom, eager to discuss how to define an insurrection. He stated during his opening remarks, “We are here because, for the first time since the War of 1812, our nation’s capital came under violent assault.” He added that the attack was incited by a sitting president to disrupt the peaceful transfer of power.
For the Supreme Court, it seems likely that whether the events of January 6 constitute an insurrection will remain an open question.
Source link: F5mag.com