Former U.S. President Donald Trump points to supporters at the conclusion of a campaign rally at the Atkinson Country Club on Jan. 16, 2024, in Atkinson, New Hampshire. (Brandon Bell/Getty Images)
"When you look at Section 3, the term insurrection jumps out," Kavanaugh said. "And the questions are, what does that mean? How do you define it? Who decides? Who decides whether someone engaged in it?"
Kavanaugh noted the courts looked at these questions in an 1869 decision, known as "Griffin's case," which found that an act of Congress was necessary to enforce the 14th Amendment's ban on insurrectionists holding federal office.
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Supreme Court Justices hear arguments from Trump attorney Jonathan Mitchell. (William J. Hennessy, Jr.)
"These are difficult questions, and you look right at Section 5 of the 14th Amendment ... and that tells you Congress has the primary role here," Kavanaugh said. "I think what's different is the processes, the definition, who decides questions really jump out at you when you look at Section 3."
Chief Justice John Roberts questioned Colorado’s attorney Jason Murray about the "consequences" of the state’s position.
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"What do you do with consequences of your position? There will be disqualification proceedings on the other side, and some will succeed in very quick order, I would expect that a goodly number of states will say whoever the Democrat is, you're off the ballot," he said. "It would then come down to a small number of states deciding the election. That's a pretty severe consequence."
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Justice Samuel Alito pressed Murray to "grapple" with "what some people have seen as the consequences of the argument that you're advancing, which is that there will be conflicts in decisions among the states."
"The different states will disqualify different candidates. But I'm not getting a whole lot of help from you about how this would not be an unmanageable situation," Alito said.
Brianna Herlihy is a politics writer for Fox News Digital.
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