They’ve feuded in the past, but Justices Ketanji Brown Jackson and Clarence Thomas were singing from the same songbook Thursday as they blasted the challenge to former President Donald Trump appearing on the ballot, saying it misunderstood the point of the 14th Amendment.
The two Black justices — one appointed by President Biden and the other by President George H.W. Bush — said the Civil War-era amendment was meant as a check on Southern states, undercutting those who argue states should have the power to exclude Mr. Trump from the ballot.
Justice Jackson in particular said Section 3 of the amendment, which contains the Insurrection Clause being used against Mr. Trump, seems quite pointed in not including the president in the list of offices to which it applies.
“I didn’t see any evidence that the presidency was top of mind for the framers,” she said.
The case before them came out of Colorado, where a group of voters challenged Mr. Trump’s place on the Republican primary ballot.
The state Supreme Court agreed with them, ruling in December that the former president engaged in an insurrection surrounding the 2020 election and the attack on the U.S. Capitol, that he is covered by Section 2, and that the state can block him from the ballot.
Justice Jackson, though, said the plain wording of the amendment lists a number of other offices, including electors who vote for the presidency, but never the chief executive itself.
“Why didn’t they put the word ‘President’ in the very enumerated list in Section 3?” she said. “The thing that really is troubling to me is … they were listing people that were barred and ’president’ is not there.”
Jason Murray, the lawyer for the voters challenging Mr. Trump, said there was no doubt those who wrote the amendment intended for the top office to be included, saying the country was trying to block Confederates from taking control of the government.
But Justice Jackson said that misunderstood the history.
“The pressing concern, at least as I see the historical record, was actually what was going on at the lower levels of 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 via state-level elections,” she said.
Justice Thomas, like Justice Jackson among others on the bench, suggested the 14th Amendment was meant to be a check on the states — not to empower them to disqualify national office holders.
“There were people who felt very strongly about retaliating against the South, the radical Republicans, but they did not think about authorizing the South to disqualify national candidates,” he said.
Section 3 reads: “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.”
The provision was written into the 14th Amendment with the Civil War in mind, but the former president’s opponents say it should apply to his attempts to stop certification of President Biden’s 2020 victory.
Justice Jackson’s fervent challenge to Mr. Trump’s opponents drew surprise from liberal activists, who took to social media to wonder about the direction of her questions.
But Mike Davis, president of the Article III Project and a former clerk to Justice Neil M. Gorsuch, said her questions were a reflection of how weak the Trump opponents’ case was.
“This Colorado disqualification case was so bad for the anti-Trump forces that they managed to turn Justice Jackson into the leading textualist and originalist at oral argument today,” he said.
Elliot Mincberg, senior fellow at People For the American Way, said there were concerns from the justices across ideological lines for different reasons regarding barring Mr. Trump.
He cautioned against reading too much into the tenor of the questions, though.
“I’m not sure you can judge too much from the argument itself,” he said.
Curt Levey, president of the Committee for Justice, said there were a variety of directions the court could go, but in the end he says Mr. Trump comes out on top — with liberal justices joining the ruling.
“Although the grounds on which the Court will rule are up in the air, it would be very surprising if Justices [Elena] Kagan and Jackson do not join the six center-right justices in ruling against Colorado,” he said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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