SCOTUS Holds Oral Argument on Colorado's Disqualification of Trump from the Ballot
From the Justice's questions it does not look good for the Trump haters
As readers undoubtedly know, the Colorado Supreme Court issued a ruling disqualifying President Trump from the Presidential ballot in Colorado under the provisions of Article 3 of the 14th Amendment. I wrote about the original decision in an earlier substack post. Trump’s legal team applied to the United States Supreme Court asking for SCOTUS to intervene and end this lunacy. As I observed in another substack post, the Supreme Court granted Trump’s request within 48 hours and agreed to hear the case. The Supreme Court set a very aggressive briefing schedule and set oral argument for today, February 8, 2024.
The oral argument took place earlier today. I was able to listen to the tail end of the argument live, but went back and listened to the rest of the recorded argument. The argument merits some comment.
First, a couple of observations about oral argument, not just in the Supreme Court, but in any court: divining how a particular judge or Justice may vote based on oral argument is speculative at best. But, often oral argument has value to the litigants by giving the lawyers the opportunity to directly the identify, and address, the court member’s actual concerns. Also, the questions asked by the judges will often reveal their thoughts about some of the issues in the case.
Now to the argument itself. As I stated in my substack post about the Colorado decision, Article 3 of the 14th Amendment (the provision used to bar Trump from the Colorado ballot) probably does not apply to the President (any President), because he is not an “officer of the United States” under Article 3. Every member of the Supreme Court who asked questions, including liberal Justices Kagan and Jackson, asked questions indicating they do not believe the President is covered by Article 3 of the 14th Amendment. Justice Ketani Brown Jackson, widely believed to be the friendliest court member to those seeking to disqualify Trump from the ballot, expressed more skepticism about the Presidency being covered by Article 3 of the 14th Amendment than, perhaps, any other Justice.
Additionally, several of the Justices challenged the argument that Article 3 of the 14th Amendment is self-executing. This (self-execution) pertains to HOW and WHEN and BY WHOM challenges can be made under Article 3. The Colorado Supreme Court ruled any voter could use Article 3 to try to disqualify a candidate. Justice Kagan, again one of the more liberal Justices, directly challenged counsel on this point, asking why Colorado has the right to decide this question for the rest of the Country. Several other Justices asked questions about this issue as well. None of the questioning on these issues appeared to me to be favorable to the parties trying to disqualify President Trump.
In fact, based on Justices questions and comments, while there is likely some disagreement on various different issues raised in the case among the Court, all of the Justices focused on at least one or two issues in favor of the positions articulated by President Trump’s lawyers and those opposing the disqualification.
Based on the oral argument, I would not be surprised if the Supreme Court’s ruling is unanimous in reversing the Colorado Supreme Court. Like I said at the start, the Colorado Supreme Court is about to get its comeuppance. SCOTUS will likely administer a massive rebuke to the not-so-deep-thinkers on the Colorado Supreme Court. At any rate, these ludicrous efforts to disqualify President Trump from the Presidency will soon be brought to an unceremonious end.
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