The legal challenge by Colorado voters to disqualify former President Donald Trump from the ballot was met with a cold reception at the Supreme Court on Thursday, leaving open the question of whether the nine-member court may find unanimity.
To secure a strong 9-0 ruling from the justices, Trump’s attorneys will need to sway the six Republican-appointed and three Democratic-appointed justices to unite in finding that he can remain on the ballot in the pivotal 14th Amendment challenge.
Nearly every member of the high court signaled skepticism about upholding the Colorado Supreme Court’s 4-3 ruling that would remove Trump from the state’s primary ballot if upheld. Even two of the court’s three liberal justices expressed discomfort with upholding the ruling, with the most vocal skeptics being Justices Elena Kagan and Ketanji Brown Jackson.
“What’s a state doing deciding who other citizens get to vote for president?” Kagan asked at one point during the two hours and 15 minutes the justices sat weighing the case.
Jackson, an appointee of President Joe Biden, asked the attorneys for the Colorado voters why the framers didn’t “put the word president in the very enumerated list in section three?”
Justice Sonia Sotomayor, who was named to the court by former President Barack Obama, was the only member of the minority bloc who did not share her doubts about removing Trump from the state ballot. She repeatedly questioned Trump’s attorney Jonathan Mitchell during his time at the lectern but sat out of the discussion when the voters’ attorney Jason Murray presented his arguments.
While the rest of the justices in the Republican-appointed majority seemed to appear similarly skeptical about removing Trump from the ballot, their reasoning at times didn’t align with one another. Chief Justice John Roberts and Justice Amy Coney Barrett reasoned that it seemed like a stretch that a single state could decide whether to remove a national presidential candidate from the ballot, while other conservative justices such as Brett Kavanaugh and Neil Gorsuch seemed open to the argument that Section 3’s application to the presidency was quite ambitious.
Trump declared the oral arguments a “very beautiful process” on Thursday afternoon, signaling the former president also thinks the odds are in his favor to ward off dozens of similar ballot challenges that allege he played a role in the Jan. 6 riot and should therefore be barred from running for office.
Following the oral arguments, many legal scholars thought the Supreme Court did not find the challengers’ arguments convincing.
“I have watched over 400 Supreme Court arguments. I have done 50 myself. I would tell you this argument did not go well for the Trump challengers. And that’s to put it mildly. I probably have some other adjectives that I won’t say on air,” Supreme Court lawyer and professor Neal Katyal said.
Sen. Eric Schmitt (R-MO) also spoke with the Washington Examiner following the arguments and agreed that the way the justices responded to the Colorado voters’ arguments could bring the 6-3 high court together in their final decision.
“I think that some more pointed questions came from more liberal justices. And you don’t want to read too much into that,” Schmitt said.
But across the board, it was clear that a majority of the justices were not convinced that Colorado had the ability to take a presidential candidate off the ballot.
“So I think those are the few things that were touched on by from everything that I heard from justices, again on either side of the ideological spectrum,” Schmitt added.
As for whether the court will make a determination about Trump’s role in a purported “insurrection,” Jackson was also one of the only justices who had anything to say about those events.
“A chaotic effort to overthrow the government is not an insurrection?” Jackson asked Mitchell after he said an insurrection “needs to be an organized, concerted effort.”
“We didn’t concede that it’s an effort to overthrow the government either, Justice Jackson,” Mitchell responded. “This was a riot.”
Meanwhile, Kavanaugh asked whether there would be any implications for a candidate convicted under a federal law criminalizing insurrection.
“Our client is arguing that he has presidential immunity. So we would not concede that he can be prosecuted for what he did on Jan. 6,” Mitchell said, referencing a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit that unanimously found Trump doesn’t have presidential immunity from special counsel Jack Smith’s election subversion case, one of four criminal indictments Trump is facing.
Trump is expected to petition the Supreme Court soon over his immunity dispute, which could drag the former president back up to the high court steps again.
Trump receiving a perfect 9-0 in his favor over the ballot dispute could be beneficial not just for his presidential aspirations but also for the high court, which has struggled to maintain trust and credibility among the public at least since the summer of 2022, when a draft of the opinion that overturned Roe v. Wade led to protests for weeks in response to the eventual decision.
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Despite some divisive 6-3 rulings in recent years on cases including Second Amendment rights, the overturning of affirmative action policies for colleges, and other controversial arguments, the Supreme Court last term only saw five decisions handed down that were split along ideological lines, following the 14 cases in 2022 that were split 6-3, according to the Empirical SCOTUS blog.
The justices are likely to hand back a decision in the Trump ballot dispute before March 5, the day when dozens of states vote for their preferred nominees to face off in the November general election.
