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Colorado banning Donald Trump from the presidential ballot was "quite severe", conservative Supreme Court Justice Samuel Alito has said during oral arguments in the case.
Alito appeared to be strongly indicating his dislike for the ban and asked Trump's lawyer, Jonathan Mitchell, if Colorado was creating law for other states, or perhaps, all states.
Mitchell replied that it doesn't set a precedent for other states because Colorado does not rule by collateral estoppel or issue preclusion, the legal principle that prevents a party from re-litigating an issue that was already decided in another legal action.
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 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 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 state court, 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 Three 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 Three 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.
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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