It has been noted that Trump-appointed Supreme Court Justice Amy Coney Barrett recently joined in to interrogate Trump lawyer Jonathan Mitchell during the hearing on banning former President Donald Trump from the ballot as an insurrectionist.
The Supreme Court began to hear arguments Thursday morning in a case that will determine whether states can ban Trump from the ballot on the grounds that he violated the 14th Amendment by engaging in insurrection on January 6.
Early in the hearing, Justice Barrett jumped in to grill Trump’s lawyer, as did conservative Justice Samuel Alito, on potential holes in Trump’s arguments:
“JUSTICE AMY CONEY BARRETT: Why do you need those consequential concerns, though? I mean, it kind of seems to me that what Justice Kagan is getting at is why don’t you have an argument that the constitution of its own force, that section three of its own force, preempts the state’s ability? Not not necessarily, I think not to enforce section three against its own officers, but against federal officers, like in a Tarble’s case kind of way.
JONATHAN MITCHELL: So there could also be an argument that’s more limited. You’re suggesting there may be a barrier under the Constitution to a state legislating an enforcement mechanism for section three specific to federal officers. We could rely on precedents such as McClung, that says that state courts lack the authority to issue mandamus relief against federal officials.
JUSTICE AMY CONEY BARRETT: Why aren’t you making those arguments?
JONATHAN MITCHELL: Because that doesn’t get us, that Griffin.
JUSTICE AMY CONEY BARRETT: That only gets you out of state court doesn’t get you out of federal.
JONATHAN MITCHELL: And also, the holding of Griffin’s case went well beyond that because Chief Justice Chase said in this opinion, which again provided the backdrop for the congressional enforcement legislation that states had no role in enforcing section three unless Congress was to give them that authority through a statute that they passed pursuant to–
JUSTICE AMY CONEY BARRETT: But your arguments (please go ahead.) I was just going to add one last thing. I think your arguments a little broader than that, because I think if we accept your position that disqualifying someone from the ballot is adding a qualification, really your position is that Congress can’t enact a statute that would allow Colorado to do what it’s done, either because then Congress would be adding a qualification, which it can’t do either.
JONATHAN MITCHELL: I don’t agree with that, Justice Barrett. Congress is not bound by the holding of term limits. Term limits only prohibits the states from adding additional qualifications or altering the Constitution’s qualifications for federal office. It does not purport to restrain Congress.
So if Congress were to enact implementing legislation that authorized the states to exclude insurrectionists from the ballot, we believe that would be valid enforcement legislation under section three, with an important caveat. There has to be congruence and proportionality under this court’s precedents.
JUSTICE SAMUEL ALITO: Why would that be an important, why would that be permissible? Because section three refers to the holding of office not running for office. And so if a state or Congress were to go further and say that you can’t run for the office, you can’t compete in a primary, wouldn’t that be adding an additional qualification for serving for president? You must have been, free from this disqualification at an earlier point in time than section three specifies.
JONATHAN MITCHELL: I think, the answer to your question, Justice Alito, depends on how you interpret the word enforce in section five. And some members of this court, such as Justice Scalia, thought that enforce means you can do nothing more than enact legislation that mirrors the 14th amendment’s self-executing requirements, and you can’t go an inch beyond that. That’s not the current jurisprudence of this court.
JUSTICE SAMUEL ALITO: Well or allow us to decide whether it’s congruent and proportional. And we would get into the question of whether that would be congruent and proportional.”
