Jason Murray, a counsel for Colorado voters, retaliated against Brett Kavanaugh, the president Trump’s nominee to the Supreme Court, pointing out that the insurrection clause had been “dormant” for 150 years before to his election.
In a case that will decide whether states can bar Trump from running for office on the grounds that his involvement in an insurrection on January 6 violated the 14th Amendment, the Supreme Court started hearing arguments on Thursday morning.
Murray sparred with Chief Justice John Roberts and Brett Kavanaugh during a heated segment of the hearing on whether rejecting Trump would invite more partisan challenges.
Murray argued that the fact the provision has been dormant for 150 years demonstrates, essentially, that insurrections are rare and got a bit chippy with Kavanaugh:
JASON MURRAY: There’s a reason section three has been dormant for 150 years, and it’s because we haven’t seen anything like January 6th since reconstruction. Insurrection against the Constitution is something extraordinary.
CHIEF JUSTICE JOHN ROBERTS: It seems to me you’re avoiding the question, which is other states may have different views about what constitutes insurrection.
And now you’re saying, well, it’s all right, because somebody presumably us are going to decide. Well, they said they thought that was an insurrection, but they were wrong. And maybe they thought it was right. And we’d have to develop rules for what constitutes an insurrection.
JASON MURRAY: Yes. Your honor, just like this court interprets other constitutional provisions, this court can make clear that an insurrection against the Constitution is something extraordinary.
And in particular, it really requires a concerted group effort to resist through violence, not some ordinary application of state or federal law, but the functions mandated by the Constitution–
JUSTICE BRETT KAVANAUGH: On your point that it’s been dormant for 155 years. I think the other side would say the reason for that is Chief Justice Chase’s opinion in 1869, in Griffin’s case, to start, which says that Congress has the authority here, not the states.
That’s followed up by the Enforcement Act of 1870, in which Congress acts upon that understanding, which is followed, and there’s no history contrary in that period. As Justice Thomas pointed out, there’s no history contrary in all the years leading up to this of states exercising such authority.
I think the reason it’s been dormant is because there’s been a settled understanding that Chief Justice Chase, even if not right in every detail, was essentially right. And the branches of the government have acted under that settled understanding for 155 years.
And Congress can change that. And Congress does have section 2383, of course, the Insurrection Act, criminal statute. But Congress could change it. But they have not. And 155 years in relevant respects for what you want here today at least.
JASON MURRAY: No, Justice Kavanaugh! The reason why it’s been dormant is because by 1876, essentially all former Confederates had received amnesty. And we haven’t seen anything like an insurrection since then.
