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Justice Amy Coney Barrett said the U.S. Supreme Court should not be deciding former President Donald Trump's insurrection case solely by looking at January 6 videos.
"Do you want us to just watch the video of President Trump on the Ellipse and come to a decision without any deference to or guidance from lower court fact finding, that's unusual," Coney Barrett asked Jason Murray, a lawyer for voters who want to keep Trump off the Colorado primary ballot.
The court, which heard oral arguments Thursday, will decide if Colorado has the power to strike Trump from the ballot for engaging in an insurrection. Maine has also blocked Trump from the ballot under the same insurrection clause in the 14th Amendment of the Constitution.
Murray said that Trump was being judged on statements "that he made in public view for all to see."
Trump addressed his supporters at the Ellipse, a park near the White House, before they marched on the Capitol Building on January 6, 2021, where a riot took place. Colorado's highest court ruled 4-3 in December that Trump had participated in insurrection during the certification of the results of the 2020 presidential election.
The ruling is on hold pending the appeal in the Supreme Court. Trump hasn't been charged with insurrection.
In their opening brief to the court Thursday, Trump's lawyers urged the justices to "put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam."
The Colorado ruling said Trump's "direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary."
At the heart of the decision will be the interpretation of a small part of the 14th Amendment. Section 3 says that no person can enter Congress, become an elector "or hold any office, civil or military" who engaged in insurrection.
It is post-Civil War-era legislation that was created with the intention of preventing Confederate officials from entering high office.
Advocates of using Section 3 against Trump say this makes clear that insurrection attempts make a person unfit for high office. But opponents of the Colorado decision say that it isn't applicable to Trump because the clause doesn't mention the presidency.
What could be in Trump's favor is that six justices, including Chief Justice John Roberts, were appointed by Republican presidents. Three of them—Neil Gorsuch, Coney Barrett and Brett Kavanaugh—were appointed by Trump.
The court could avoid a compete conclusion on the issue, which could see it drag on until later this year, or leave it as an open question even after the 2024 presidential election.
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more