For her part, Justice Elena Kagan expressed concern about adopting a view of the Constitution that might allow a single state to determine the outcome of a presidential election. As she explained her concern:
But 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, you know, this question of whether a former president is disqualified for insurrection to be president again is, just say it, it sounds awfully national to me. So whatever means there are to enforce it would suggest that they have to be federal, national means. Why does – if you weren’t from Colorado and you were from Wisconsin, or you were from Michigan, and it really – what the Michigan secretary of state did is going to make the difference between whether Candidate A is elected or Candidate B is elected, I mean, that seems quite extraordinary, doesn’t it?
Justice Samuel Alito gave his own example highlighting the danger of such an approach:
When pressed, Murray responded by saying that the state legislature would indeed have such power.
Justice Neil Gorsuch drilled down on other problems with the arguments made by Colorado and Democrats, specifically the argument that Section 3 is “self-executing” on such a level that it immediately takes effect when triggering events occur. If that were true, Gorsuch said, then Trump was no longer the commander-in-chief for his last two weeks in office after January 6, 2021, and none of his actions had legal authority.
When Murray rejected Gorsuch’s point that military commanders and other officials would no longer have to obey Trump’s orders, Gorsuch responded:
Why not? You say he’s disqualified from the moment it happens. Now, I understand the de facto officer doctrine might be used to prohibit people from seeking judicial remedies for decisions that take place after the date he was disqualified. But if he is, in fact, disqualified, from that moment, why would anybody have to obey a direction from him?
Some were surprised when Justice Ketanji Brown Jackson expressed concern over the point that the office of president is not named among the various positions like senator or representative that are listed as positions from which a person is disqualified if they engaged in insurrection. (Author’s disclosure: That point was thoroughly discussed in an amicus brief that I coauthored on behalf of former U.S. Attorneys General Ed Meese, Michael Mukasey, and Bill Barr, among others.)
An anti-Trump demonstrator yells in Washington, DC, on August 3, 2023, ahead of former President Donald Trump’s arrival for arraignment on conspiracy and obstruction federal charges related to the January 6, 2021, U.S. Capitol riots. (Bryan Dozier/Anadolu Agency via Getty Images)
As Jackson put it:
But then why didn’t they put the word “president” in the very enumerated list in Section 3? The thing that really is troubling to me is I totally understand your argument, but they were listing people that were barred and president is not there. And so I guess that just makes me worry that maybe they weren’t focusing on the president and, for example, the fact that electors of vice president and president are there suggests that really what they thought was if we’re worried about the charismatic person [running for president], we’re going to bar insurrectionist [presidential] electors [included on that list] and, therefore, that person [running for president] is never going to rise [to the office]?
When Murray did not offer a persuasive answer, Jackson pressed, “The language here doesn’t seem to include ‘president.’ Why is that?”
For her part, Justice Amy Coney Barrett expressed concern about the lack of due process in the proceedings that declared Trump invalid. Of all nine justices, only Justice Sonia Sotomayor did not offer a hint of which way she was leaning.
If this victory is as lopsided as Thursday’s argument would suggest, it presents an interesting question for Chief Justice Roberts. The senior justice in the majority assigns who writes the court’s opinion, and the chief is the most senior member of the court.
Roberts has assigned recent major election matters to himself, and could well do so for this extraordinary and historic case. But if he assigns it to a liberal justice in the majority — such as Justice Jackson, appointed by President Joe Biden — it would completely shut the door on attempts to characterize this decision as any sort of partisan or ideological decision, satisfying all but the most wide-eyed activists on the Far Left.
But regardless of the authorship, this is no longer an urgent case. The briefing and argument were completed on an emergency basis, but now that Trump has become the presumptive Republican nominee, and it is clear that the court will not rule that he is eligible to stay on the ballot, the justices can focus on writing a meticulous and detailed opinion that will stand the test of time.
Time is one thing the justices have on their side. The term ends the last week of June, so the decision will come down before both political parties’ nominating conventions and the formal general election campaign.
The case is
Trump v. Anderson
, No. 23-719 in the Supreme Court of the United States.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department.
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@kenklukowski
.