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Supreme Court justice, Ketanji Brown Jackson, has said that a constitutional ban on insurrectionists taking office was created for state appointments, not the presidency, yet this has not been raised by Trump's lawyer in his ballot ban challenge.
During oral arguments on Colorado's ban on Trump's inclusion on the state ballot, she told the former president's lawyer, Jonathan Mitchell, that she was surprised that the historical record was not a major pillar of his arguments for keeping Trump on the Colorado ballot.
Brown Jackson, a Biden appointee, said that the historic record shows that the ban on insurrectionists under Section 3 of the 14th Amendment was introduced to stop former Confederates from taking positions in state government and then using that to reestablish the Confederacy, and didn't seem to refer to the presidency.
Responding to Mitchell's arguments, Brown Jackson said: "I guess I'm a little surprised...because I thought that the history of the 14th Amendment actually provides the reason for why the presidency may not be included.
"I didn't see any evidence that the presidency was top of mind for the framers when they were drafting Section 3, because they were actually dealing with a different issue."
"The pressing concern, as least as I see the historical record, was actually what was going on at lower levels of the government: the possible infiltration and embedding of insurrectionists into the state government apparatus and the real risk that former Confederates might return to power in the South," she said.
She also questioned Mitchell's definition of an insurrection.
"For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence," Mitchell said.
"A chaotic effort to overthrow the government is not an insurrection?" Brown Jackson asked.
Mitchell responded: "This was a riot. It was not an insurrection."
The Supreme Court was hearing oral arguments on Thursday on whether Donald Trump can be reinstated to the primary ballot in Colorado.
The court will decide if the state 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 and a Supreme Court decision could end Trump's appeal along with cases in other states.
Colorado's highest court essentially ruled in December that Trump had participated in insurrection, relating to the events of January 6, 2021, when his supporters stormed the Capitol during the certification of the results of the 2020 presidential election. The ruling, 4-3, said the decision was not reached "lightly" and it was "mindful of the magnitude and weight of the questions now before us."
The ruling is on hold pending the appeal in the Supreme Court. Trump hasn't been criminally convicted on insurrection charges.
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."
In their opening brief to the court, 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."
Members of the Senate and House have backed Trump's appeal to America's highest court, including Senator Ted Cruz and Minority Leader Mitch McConnell.
The appeal is supported in the House by MAGA Republicans and Speaker Mike Johnson, among the 177 members of Congress to back Trump.
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, Amy Coney Barrett and Brett Kavanaugh, were appointed by Trump.
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 state 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 it doesn't mention the presidency.
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 has concluded.
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