Conservative Supreme Court justices expressed skepticism during oral arguments Thursday that Colorado has the authority to remove former President Donald Trump from the state’s ballot over his actions leading up to the Jan. 6, 2021, riot at the U.S. Capitol.

The high court heard a challenge from Trump, the front-runner for this year’s Republican presidential nomination, to the Colorado Supreme Court’s ruling in December that found the former president was disqualified from serving as president because of his “direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary.”

Section 3 of the 14th Amendment disqualifies anyone from serving in a wide range of federal and state offices if they have taken an oath of office to protect the Constitution and then “engaged in insurrection or rebellion.” The disqualification can be lifted by a two-thirds vote in Congress.

The stipulation was added after the Civil War to block members of Congress who supported secession from returning to office. It had never been applied to a presidential candidate until Colorado’s ruling, which was soon followed by another disqualification by Maine’s secretary of state, a decision that is being appealed.

Jonathan Mitchell, an attorney for Trump, argued the Colorado decision should be reversed on two grounds: The 14th Amendment does not apply to presidents and it cannot be imposed on candidates because the possibility remains that Congress could choose to lift and restrictions. 

Much of Mitchell’s argument hinged on a nonbinding 1869 U.S. Circuit Court case in Virginia in which a man convicted of attempted murder, Ceasar Griffin, argued his sentence should be overturned because the judge was ineligible to serve after supporting the Confederacy. The court ruled that enforcement of the insurrection clause should be left to Congress.

“If this court were to adhere to the holding of Griffin's case, there would not be any role for the states in enforcing Section 3 unless Congress were to enact a statute that gives them that authority,” Mitchell said.

Section 3 says insurrectionists are barred from serving in Congress, as presidential electors, or “any office, civil or military, under the United States, or under any State.” It does not list president or vice president, but those who say Trump should be disqualified argue that a reference to “an officer of the United States” covers the presidency.

However, Mitchell said he believes other sections of the Constitution make clear that the framers did not consider the presidency to be an “office under the United States,” which he argued applied to only appointed, not elected, officials.

Under questioning, Mitchell conceded “it does seem odd that President Trump would fall through the cracks in this sense” but theorized members of Congress might have settled on the wording they used as a “constitutional compromise.”

Chief Justice John Roberts asked Mitchell if he believed a state’s secretary of state could disqualify a candidate who was an admitted insurrectionist. 

“Even if the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office and even win election to office and then see whether Congress lifts that disability after the election,” Mitchell said.

Mitchell’s case had little to do with whether Trump engaged in an insurrection, but in response to a question from Justice Ketanji Brown Jackson, he said: “This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things, but did not qualify as insurrection as that term is used in Section 3.”

Jason Murray, who was arguing the case on behalf of the six Republican or unaffiliated voters who sued to boot Trump from the Colorado ballot, argued there is “no possible rationale” that the framers would have made an “extraordinary mistake” by not intending to keep an insurrectionist out of the White House. 

He also said states have the authority under Article 2 of the Constitution “to ensure that their citizens' electoral votes are not wasted on a candidate who is constitutionally barred from holding office.”

And Murray disputed Mitchell’s claim that a possible congressional override of a disqualification should prevent states from ruling on a candidate’s eligibility. 

“Much like the fact that the president can pardon somebody for criminal conviction doesn't make that conviction somehow contingent,” he said. 

But Murray quickly ran into a wave of skepticism from justices.

Justice Clarence Thomas asked for examples of states excluding candidates in national races. Murray could only think of one, in 1868, but insisted that was not surprising because elections have changed drastically over the years. 

“Candidates were either write-in or or they were party ballot, so the states didn't run the ballots in the same way and there wouldn't have been a process for determining before an election whether a candidate was qualified,” he said.

Roberts said the rest of the 14th Amendment appears to restrict states’ rights and augmented federal power. 

“Wouldn't that [Section 3] be the last place that you'd look for authorization for the states, including Confederate states, to enforce … the presidential election process?” he asked. “That seems to be a position that is at war with the whole thrust of the 14th Amendment and very ahistorical.”

And Justice Brett Kavanaugh disagreed with Murray’s assertion that Article 2 — which gives states the authority to choose its presidential electors — also gave them the right to determine the qualification of candidates when considering the 14th Amendment.

“I think you're taking that electors argument and bringing it in into Section 3, where, as the chief justice says — and Justice Thomas — there's just no historical evidence to support.”

Even Kagan, who was nominated by President Barack Obama, a Democrat, pressed Murray on the potential larger impact of a state disqualifying a candidate. 

“Why should a single state have the ability to make this determination, not only for their own citizens, but for the rest of the nation?”

Murray answered, “Ultimately, it's this court that's going to decide that question of federal constitutional eligibility and settle the issue for the nation.”

The conservative justices appeared to be apprehensive about issuing a ruling that would put the Supreme Court in the position of determining whether a candidate was disqualified under the insurrection clause. 

Justice Amy Coney Barrett noted such a ruling could have ramifications in other states, even though the court would have based its decision on a case presented by a single state.

“You say that we have to review Colorado's factual record with clear error as the standard of review,” she told Murray. “So we would be stuck the first mover state here, Colorado. We're stuck with that record. … Maybe the record is great. But what if the record wasn't?”

Coney Barrett also seemed to disapprove of Murray’s suggestion that justices they could make a determination based on Trump’s own public statements. 

“You want us all to just watch the video of The Ellipse and then make a decision without any deference to or guidance from lower court factfinding?” she asked. “That's unusual.”

There was also debate about whether Section 3 is self-executing. Trump’s attorney claimed it is not, again pointing to the 1869 Griffin ruling that said Congress should make the determination on disqualification. 

But Murray argued a person is disqualified the moment they engaged in an insurrection or rebellion.

That prompted a tough line of questioning from Roberts and Justice Neil Gorsuch, who pressed Murray on why a military commander would have to obey orders from a president who they believed was instantly ineligible under Section 3. 

Murray said he was “not sure that anything gives military officers the authority to adjudicate effectively the legality of the presidency.”

Six of the nine justices were nominated by Republican presidents, including three by Trump.

Speaking from his Mar-a-Lago resort in Florida during the hearing, Trump said the attempts to remove him from ballots are “election interference” by Democrats. 

“I hope that democracy in this country will continue because right now we have a very, very tough situation with all of the radical left ideas with the weaponization of politics,” Trump said.

He also insisted he did not incite an insurrection, citing statements he made on Jan. 6 calling for a peaceful protest and then later telling his supporters to go home.

With Colorado’s presidential primaries scheduled for March 5, the Supreme Court will be pressed to issue a timely ruling. 

That is also the date of Maine’s primaries. Last month, a judge there deferred her decision on Trump’s appeal until after the Supreme Court’s ruling.

In another challenge, Oregon’s Supreme Court said it will not rule until the U.S. high court weighs in because its decision in the Colorado case “may resolve one or more contentions that relators make in the Oregon proceeding.” Oregon’s primaries are in May.