Justice Jackson has weighed in on more legal questions of Jan. 6 rioting than any other Supreme Court member

By Devan Cole and Katelyn Polantz, CNN

(CNN) — Justice Ketanji Brown Jackson stands out among her eight Supreme Court colleagues for one key reason: She’s had to weigh in on more legal questions related to the January 6, 2021, attack on the US Capitol than the other jurists on the bench.

Jackson, while serving on a federal trial-level court in Washington, DC, oversaw a handful of criminal cases against rioters as the Justice Department was making its first batches of arrests after the deadly attack.

“How close can a person be to unquestionably violent and completely unacceptable lynch-mob-like acts of others and still claim to be a nondangerous, truly innocent bystander,” Jackson asked in the case of one rioter whom she released from detention.

Some three years later, Jackson’s colleagues – all of whom were already members of the high court on January 6 – will also find themselves face-to-face with the harrowing details of that day when they are discussed Thursday for the first time in the ornate courtroom in sight of where the violent siege took place at the Capitol.

The case before the nine justices this week concerns an effort by a group of voters in Colorado to remove Trump from that state’s ballot under the Constitution’s 14th Amendment ban on insurrectionists holding office. The voters argue Trump “engaged in insurrection” through his conduct on January 6.

“The very fact that this case is going to the Supreme Court is a noteworthy milestone because it’s putting the court in the position of possibly having to address the question of whether what took place was an insurrection or not,” said Alexander Keyssar, a history professor at Harvard who’s taught courses on January 6. “That has not happened before in American history.”

The Supreme Court was closed to the public on January 6, 2021, because of the Covid-19 pandemic, and only a skeleton crew of court personnel was working in-person that day as the deadly attack unfolded across the street.

Attorneys for the Colorado voters seeking to keep Trump off the ballot emphasized the grisly details of the riot in court filings ahead of Thursday’s arguments, calling it the “most violent attack on our nation’s Capitol since the War of 1812.”

“A mob, thousands-strong, broke through police lines outside the Capitol, infiltrated the building through shattered windows, and engaged law enforcement officers in hours of brutal combat,” the voters told the high court.

“In the end, reinforcements arrived from neighboring jurisdictions to put down the insurrection. But not before over 140 law enforcement officers were injured, members of Congress and the Vice President were forced to abandon the electoral certification and flee the chambers, and the heart of America’s democracy was choked in a cloud of noxious chemicals.”

A ‘powder keg’ and ‘toxic chemicals’

Then-Judge Jackson ultimately handed the rioter cases she was assigned off to other judges when she left the district court after President Joe Biden elevated her to the DC Circuit Court of Appeals. But her statements from the period immediately following the attack offer an indication of how she might approach the riot in the Trump ballot case.

“Many of the attendees of this rally were lured to the Capitol Building itself,” she said at a March 2021 hearing for Texas rioter Christopher Grider (he was later convicted). “They participated in what many scholars and commentators have characterized as an armed insurrection … If there is a more serious offense in terms of who we are as a society and the democratic order that is at the core of our constitutional scheme, I don’t know what is.”

In friend-of-the-court briefs submitted to the justices, others also leaned into the violence of that day as they pressed the court to rule one way or another.

A group of current and former US Capitol Police officers who defended the Capitol building on January 6, for example, zeroed in on their experiences that day in a brief opposing Trump’s arguments that his speech given the day of the riot is protected by the First Amendment.

“Mr. Trump had worked for months to fashion a powder keg. On January 6, he threw the match,” they wrote, adding later that Trump’s audience that day “did as it was told.”

“Attackers breached the Capitol’s defenses, forced entry, and temporarily obstructed Congress’s electoral vote count,” the officers told the justices. “In the process, the attackers violently assaulted (the officers who filed the brief) and other Capitol Police officers, striking them and spraying them with toxic chemicals.”

Shortly after the attack, the House – on a bipartisan basis – impeached then-President Donald Trump for “incitement of insurrection,” though he was later acquitted in the Senate. A House select committee with members from both parties later spent months investigating the attack, eventually releasing a damning 800-page report on its findings.

For its part, the Justice Department has prosecuted more than 1,200 people accused of participating in the riot in the three years since the attack, securing guilty pleas or convictions for nearly 900 of those people. The overwhelming majority of those cases have been brought in the federal trial court in Washington, DC, with some thorny legal questions arising from some of them having been examined by the federal appeals court based in DC.

It won’t be the last time this year the justices will have to grapple with the historic attack as they weigh some legal issues related to it.

The court agreed in December to consider whether part of a federal obstruction law can be used to prosecute some of the people involved in the Capitol attack, and the justices will eventually have to decide whether Trump is immune from being criminally prosecuted for alleged crimes he committed over the 2020 election results.

Clarence Thomas recusal question

Meanwhile, conservative Justice Clarence Thomas has faced pressure to recuse himself from the case from liberals who have seized on his wife’s conservative activism and efforts to reverse the 2020 election results.

In a letter sent by eight Democratic lawmakers to Thomas last month as the court was still considering whether to take up Trump’s appeal, the lawmakers argued Virginia “Ginni” Thomas’ role in the January 6 “Stop the Steal” rally that she attended makes it “unthinkable” the justice could be impartial in deciding whether the event constituted an insurrection.

“Not only did your wife attend the January 6 rally, but she was instrumental in planning it and bringing the insurrectionists to the Capitol,” the Democrats wrote.

Thomas has so far resisted the recusal calls, though he or any other justice could recuse themselves at any point. They are not required to explain themselves either way.

It’s possible that when the Supreme Court issues its ruling in the Colorado case it’s considering Thursday that the majority opinion sidesteps the question of whether Trump “engaged in insurrection.” There are several so-called off-ramps the justices might consider taking that could allow them to side with Trump on a more technical part of the case.

“It’s an important moment in part because it focuses on what Trump himself did,” Keyssar said. “But I suspect that the questioning and the discussion is going to center less on what transpired on January 6, and more on conflicting interpretations of what Section Three of the 14th Amendment means.”

Jackson, however, could be a justice to watch because of her earlier experience. She’s also the originator of one of the harshest rebukes of Trump’s general approach in court, in an oft-quoted 2019 case.

“Presidents are not kings,” she wrote.

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