Ghosts of the confederacy ran through the US Supreme Court in Washington on Thursday as the nine justices gathered for oral arguments for the Trump v Anderson case. The supreme court must decide whether the Colorado Supreme Court erred in excluding the former president from the ballot paper for its Republican primary ballot.
The outcome of the case could see former US president Donald Trump’s disqualification from the presidential race over his role in the January 2021 protest which culminated in a riotous attack on the Capitol.
Protesters holding placards for Mr Trump’s removal from the election gathered outside the supreme court building along with supporters of the former president. Over the course of the morning, the tone of the questioning suggested a collective scepticism of the argument voiced by Jason Murray, who presented the Colorado case.
“I think that the question you have to confront is why a single state should decide who gets to be president of the United States,” justice Elena Kagan, one of the more liberal justices, told Mr Murray, who faced a testy line of questioning. Chief justice John Roberts told Mr Murray at one stage that he was “avoiding the question, which is other states may have different views on what constitutes an insurrection”.
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Central to the Colorado argument, and counter to the position of the Trump defence, is that the events at the Capitol met the criteria of an insurrection and the assertion that presidents of the United States are included in the term “officers” in a specific section of the Fourteenth Amendment.
There was very little direct focus on Mr Trump’s influence over the events of January 6th. At the epicentre of the morning’s hearings lay the diametrically opposed interpretations of both sides in relation to the contentious Section 3, which is enjoying its most heavily scrutinised reading since its original drafting in 1866.
The nine justices put Jonathan Mitchell, representing Mr Trump, who did not attend the hearing, through a lengthy examination on their narrow interpretation of Section 3. That clause was drafted to prevent anyone “engaged in insurrection or rebellion” from holding office or serving as a United States elected official.
Key to the Trump legal defence is the hitherto obscure Griffin case, a US circuit court case in Virginia from 1869 in which the defendant, Caesar Griffin, sued to have his conviction for attempted murder overturned on the grounds that the judge in charge of his case should not have been permitted to hold office as he had supported the confederacy. The court disagreed with the argument and then-supreme court justice Salmon Chase found that such disqualification would require due process and, also, that “legislation by congress was necessary”.
“We believe the Griffin case was correctly decided,” Mr Mitchell told the justices at the outset of his argument, in which he also held the contention that Section 3 does not apply to Mr Trump because he wasn’t an “officer” of the United States when he served as president. The defence lawyer responded to a lengthy examination from the justices in an extraordinary series of exchanges which illuminated the unprecedented nature of the hearing.
The hearing represents the most direct involvement by the supreme court in a presidential contest since the Bush v Gore case of 2000, which effectively tipped the outcome of that election in the former’s favour. Although supreme court deliberations are often lengthy, it is expected that the extraordinary nature of this hearing will dictate a speedy verdict from the justices: Colorado will hold its primary, along with 14 other states, on March 5th.
