Rocky Mountain low: Colorado’s lawyer didn’t get it right before the Supreme Court

Daniel Webster himself could not have won the argument yesterday at the supremely partisan Supreme Court. Justice William Brennan famously said that the most important skill for any justice was “counting to five.” The six conservative justices, three appointed by Donald Trump, were never going to remove former president from the Colorado ballot — or, for that matter, from any ballot in the country.

If Trump fails to regain the White House, it will have to be because he is rejected by the voters, not the judges. Even if the Supreme Court turns down his immunity argument, the Jan. 6 trial proceeds, and he is convicted before the election, he can still run. And if he runs and is elected, the four criminal prosecutions with their 91 felony counts will fade into history.

Jason C. Murray, the lawyer for the Colorado voters, was articulate and plainly spoken in his maiden oral argument before the court, but the answers he gave to the justices’ questions were not the best. He could have made a better record for why disqualification was indicated.

Murray’s argument was deeply flawed in that, instead of arguing for a uniform national rule dictated not by Colorado but by the Constitution, he flatly conceded that, “Different states can have different procedures. Some states may allow insurrectionists to be on the ballot.” In short, he was arguing for a crazy quilt of rules that would breed electoral chaos.

Justice Thomas, whom many thought should have recused himself because of his wife’s involvement with the Trump effort to overturn the 2020 election, asked Murray for examples since 1868 of states disqualifying candidates for the presidency. Murray basically conceded that he had no relevant examples. A forceful answer might have been: “Your honor, there are no examples because up until 2021, we never had a president who engaged in an insurrection.”

Another example is Chief Justice Roberts’s question “from the 30,000-foot level” that the point of the 14th Amendment was to “restrict state power” — due process, equal protection, privileges and immunities of national citizenship — and augment federal power under Section 5 giving Congress the power to enforce the 14th Amendment. So how do you get to a grant to the states to disqualify? Murray relied on the Article II electors clause of the Constitution, which gives states the power to determine the manner of selecting presidential electors.

But this was only a half-answer. Section 3 restricted the power of the states to elect presidential candidates who were faithless oath-takers, just as the states have power to exclude under-age candidates, former presidents such as Bush or Obama who wanted to run again for a third term, or foreign-born political figures such as Arnold Schwarzenegger.

Then came the crushing questions from the liberal Justice Kagan. She asked Murray: “Why should a single state have the ability to make this determination not only for its own citizens but for the rest of the nation?” It was a riff on the rhetorical question posed by the famed English Judge Lord Ellenborough in 1808, “Can the island of Tobago pass a law to bind the rights of the whole world?”, which set aside a judgement of that island’s court against a non-resident. Here, Murray answered that this would not be so, because other states would be free to determine whether or not Trump could have access to the ballot in their states.

Wrong answer. What Murray suggested was electoral chaos, with some states having Trump on the ballot and other states not. A better answer might have been, “Your honor’s question would be better framed ‘Does the Constitution of the United States have the ability to make this determination for the entire nation?’ If Trump is disqualified under Section 3 in Colorado, he is disqualified everywhere, not because Colorado is the island of Tobago but because this is a case for a uniform national rule.” In short, it would transgress the Constitution for any state to put Trump, as a faithless oath-taker, on the ballot anywhere in the country.

Justices Alito and Gorsuch focused on a hypothetical: If Section 3 was self-executing, could military commanders disregard the lawful orders of an insurrectionist president? This is what Franklin D. Roosevelt called “an awfully iffy question.” Murray seemed flustered, arguing that the only way to stop a president in that situation was impeachment. Maybe yes, but a better answer might have been to respond with his own hypothetical: “Suppose, your honor, Trump had succeeded and overturned the election in a bloodless coup, what were the military commanders to do then?” Doubtless, there would be a constitutional crisis, as there would be under the Gorsuch hypothetical.

Then came the crusher. Justice Jackson, viewed as the most progressive member of the court, asked Murray whether there wasn’t ambiguity in the text of Section 3 as to whether the president is a person who will “hold any office, civil or military … or as an officer of the United States,” which required the court in its interpretation to tilt towards democracy.

During the debates around the framing of Section 3 after the Civil War, Senator Reverdy Johnson, a constitutional lawyer and later attorney general, asked his colleagues “why haven’t you included the president and vice president in the language?” Senator Lot Morrill responded: “We have. Look at the language, ‘any office under the United States.’” With this explanation, Johnson evidently withdrew the point.

Murray went round and round and never answered the question. He might have said:

Your honor, to the extent there is any ambiguity, our interpretation tilts towards democracy, not against it, because we seek to disqualify from the ballot an avowed insurrectionist who took an oath to “preserve, protect and defend the Constitution,” and then set about to disenfranchise 80 million voters, and who is likely to do it again, saying he wants to be a “dictator for a day,” hinting he may become “president for life” and seeking to “terminate the Constitution.” If returned to power, he is likely to end democracy as we have known it.

Such answers would not have salvaged the case for Colorado before this bench, but they might have enlightened the justices and the public as to the gravity of what is at stake.

Scholars of the Constitution, leading historians and former officials in Republican administrations in amicus briefs supported the legal case of the Colorado voters. Its advocate on oral argument could have done better.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.