March 2, 2024

At least a few of the justices appeared to be worried that states would use bogus claims to disqualify otherwise legitimate candidates. These fears are not wholly unfounded. As I noted earlier this week, a coalition of Republican governors and attorneys general suggested, in Goodfellas fashion, that such an event just might occur if Trump were to lose his suit to remain on the Colorado ballot. Some of the court’s conservative members amplified those threats during oral arguments.

“We have been told that if what Colorado did here is sustained, other states are going to retaliate and they are going to potentially exclude another candidate from the ballot,” Justice Samuel Alito said, in apparent reference to Biden. When Murray later argued that the courts would likely have to decide those cases as well and deem them frivolous, Chief Justice John Roberts pushed back.

“You might think they’re frivolous, but the people who are bringing them may not think they’re frivolous,” he told Murray. “Insurrection is a broad, broad term. And if there’s some debate about it, I suppose that will go into the decision and then eventually, what, we would be deciding whether it was an insurrection when one president did something as opposed to when somebody else did something else? And what do we do? Do we wait until near the time of counting the ballots and sort of go through which states are valid and which states aren’t?”