Even a left-wing Supreme Court justice has questioned Colorado’s deranged argument for disqualifying former President Donald Trump from the state’s presidential ballot.

By Michael Schwarz  February 8, 2024 at 2:08pm

In an audio recording from inside the Supreme Court on Thursday — broadcast on C-SPAN and posted to the social media platform X — Justice Ketanji Brown Jackson noted an obvious problem with Colorado’s contention that Section 3 of the 14th Amendment allows for Trump’s removal from the state’s presidential ballot.

In short, Jackson pointed out that the 14th Amendment’s third section does not mention the office of president.

The full text of that third section reads as follows:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

Jackson, of course, had it right. The disqualification based on “insurrection or rebellion” applied to congressional offices, as well as presidential and vice-presidential electors. It also listed “any office, civil or military.” But it did not expressly mention the presidency.

In her questioning of Jason Murray, attorney for the group seeking to disqualify Trump from Colorado’s ballot, Jackson made a strong historical argument, expressed skepticism about Colorado’s interpretation of Section 3 and even, in the end, gave nods to both original meaning and judicial restraint.

“Can you speak to the argument that really Section 3 was about preventing the South from rising again in the context of these sort of local elections, as opposed to focusing on the presidency?” she asked.

Murray responded with a strange comment about states regulating ballot access, prompting Jackson to clarify that she had not asked about ballot access in general.

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Murray then insisted that the 14th Amendment’s framers meant to exclude “charismatic rebels” from all federal offices, including the presidency.

“But then why didn’t they put the word ‘president’ in the very enumerated list in Section 3?” she asked.

“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,” she added.

Jackson then observed that the amendment’s framers did list vice-presidential and presidential electors. That, she said, also makes her think they did not accidentally omit the presidency.

A floundering Murray responded by citing a contemporary exchange between Democratic Sen. Reverdy Johnson of Maryland — a former Whig and U.S. Attorney General — and Republican Sen. Justin S. Morrill of Vermont.

According to Murray, Johnson asked Morrill why the framers of Section 3 did not include president and vice-president, to which Morrill replied, “We have” — an apparent reference to the phrase “any office.”

But Jackson spotted the problem immediately.

“Yes, but doesn’t that at least suggest ambiguity?” she asked.

“And this sort of ties into Justice [Brett] Kavanaugh’s point. In other words, we had a person right there, at the time, saying what I’m saying. The language here doesn’t seem to include president. Why is that?” she added.

Then came the coup de grace.

“And so if there’s an ambiguity, why would we construe it to, as Justice Kavanaugh pointed out, uh, against democracy?”

A strict constructionist could not have asked a better question. The text does not say “president.” Why, then, would a court read “president” into it?

Indeed, Colorado’s argument that “all offices” includes the presidency does not hold in light of the preceding enumeration. Otherwise, why mention senators, representatives and electors by name? Would it not make more sense to conclude that they meant all appointed offices? ##