Unlike most recent red-letter Supreme Court cases, Thursday’s arguments over the Colorado Supreme Court’s decision to disqualify Donald Trump from the ballot for his actions on Jan. 6 did not showcase a stark ideological split between the liberal and conservative blocs.
Often, the justices seemed to share the same concern: primarily, that states don’t have the power to disqualify federal office holders under this constitutional clause.
“The question you have to confront is why a single state should decide who gets to be President of the United States,” Justice Elena Kagan said to the attorney for the Colorado petitioners.
Her ideologically aligned colleagues harbored similar qualms.
“My question is why the framers would have designed a system that could result in interim disuniformity 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 Ketanji Brown Jackson said, later calling that potential fracturing across states “troubling.”
Jackson in particular was “troubled” by many pillars of Colorado’s disqualification argument, including that the office of the president isn’t explicitly listed under those subject to the disqualification clause. Colorado’s side argues that the president is lumped into the broad “officer” category.
She wondered skeptically whether “the framers would have put such a high and significant and important office [and] smuggled it in through that catchall phrase.”
Still, the liberals weren’t always full-throatedly team non-disqualification, to the level that some of their right-wing counterparts were.
Kagan sparred with Alito on the workability of a legislative mechanism Trump’s team insists is necessary to enforce the disqualification.
Justice Sonia Sotomayor left her stance the least clear of the three and took issue with the notion that Trump wriggled out of the disqualification clause simply because he’s never held political office before and thus didn’t take the oaths governors and legislators do.
“That’s a bit of a gerrymandered rule designed to benefit only your client,” she quipped to Trump’s lawyer, who conceded that, yes, Trump was the only president, after George Washington (and maybe John Adams), to whom that particular argument would apply.
She also jumped in at one point to bail out the flailing Jason Murray, attorney for the Colorado petitioners, supplying him with a historical data point to show that confederate soldiers and supporters did have a notion of their own disqualification from office after the Civil War by applying for amnesty.
Still, fretful predictions of a 6-3 partisan split seem less likely to come to pass after Thursday’s arguments than something more lopsided, with likely some if not all of the liberals joining the conservatives.
“If there’s an ambiguity, why would we construe it — as Justice Kavanaugh pointed out — against democracy?” Jackson asked.