During the Supreme Court arguments on Thursday regarding the eligibility of former President Donald Trump to remain on the ballot, based on Section 3 of the 14th Amendment, Associate Justice Ketanji Brown Jackson raised the issue of insurrection. In a dialogue with Jonathan Mitchell, the lawyer representing Trump, Justice Jackson sought clarification on the distinction between provisions related to disqualification due to insurrection behavior and other constitutional requirements.
Justice Jackson questioned Mitchell about the categorical nature of determining whether someone is an insurrectionist. Mitchell responded by explaining that it is not categorical because Congress has the authority to lift the disqualification through a two-thirds vote. Justice Jackson pressed further, questioning how the initial determination of falling into the insurrectionist category is not categorical if one can be excused from it. Mitchell clarified that the uncertainty of whether Trump would be excused before being sworn in, if he wins the election on January 20th, 2025, makes it non-categorical.
The discussion revolved around the acceleration of the deadline for Trump to obtain a waiver from Congress if the court requires him to show qualification under Section 3 before taking office. Mitchell emphasized that the Constitution provides a timeline for obtaining a waiver, and imposing an earlier deadline would be premature.
Justice Elena Kagan then inquired about the timing for discussing “officer stuff,” to which Chief Justice John Roberts assured that they would absolutely get to it, eliciting laughter. The reference to “officer stuff” likely pertains to matters related to holding office, as Section 3 bans individuals only from holding office.
The Supreme Court session continued with discussions about the constitutional aspects of Trump’s eligibility and the implications of Section 3 of the 14th Amendment. The tone of the exchange, as captured in the transcript, suggests a focused exploration of the legal nuances surrounding the issue.
Jackson Brown: Does it have something to do with the fact that the particular circumstance that you’re talking about can change? Is that what you mean? I’m trying to understand the distinction between the provision in the Constitution that relates to disqualification on the basis of insurrection behavior and these other provisions that Justice [Sonia Sotomayor] points out. They all seem to me to be extant, constitutional requirements. But you’re drawing a distinction.
Mitchell: I’m drawing a distinction because some of them are categorical.
Jackson Brown: What do you mean by categorical? Whether or not you are an insurrectionist is or is not categorical?
Mitchell: It is not categorical because–
Jackson Brown: Because?
Mitchell: Because Congress can lift the disability by a two thirds vote.
Jackson Brown: But why does that change the initial determination of whether or not you fall into that category? I don’t understand the fact that you can be excused from having been in the category. Why does that not make it a categorical, determination?
Mitchell: Because we don’t know whether President Trump will be excused before he’s sworn in if he wins the election on January 20th, 2025. And a court that is saying that President Trump has to show now, today, that he would qualify under Section 3, is accelerating the deadline that the Constitution provides for him to obtain a waiver from Congress.
Jackson Brown: But that is by virtue of the hold. Right? Hold office.
Jackson Brown: Section 3 bans him only from holding office.