The Supreme Court will hear arguments Thursday in a historic challenge to Donald Trump’s eligibility to appear on the ballot, thrusting the high court into a raucous election as it threatens to abruptly end the former president’s campaign for a second term.
Not since the court decided Bush v. Gore after the 2000 election have the nine justices been asked to dig into a case so intertwined with an ongoing presidential election. Though the appeal is ostensibly about Colorado’s ballot, both sides acknowledge the decision later this year will have nationwide implications.
Standing before the justices inside the ornate courtroom, a lawyer representing the six voters who challenged Trump’s eligibility will argue a post-Civil War “insurrection ban” in the 14th Amendment bars the frontrunner for the GOP nomination from serving again because of his actions leading up to the January 6, 2021, attack on the US Capitol.
A lawyer for Trump will argue that the provision doesn’t apply to a former president.
The court scheduled 80 minutes for the arguments that will kick off shortly after 10 a.m. ET, but the justices regularly blow past the set time on more mundane matters. It is more likely that they will press the attorneys arguing before them for hours.
Though sometimes inconclusive, arguments often provide important insight into how the justices are thinking about the questions before them. While the debate may not decide the outcome of a case, they can shape the behind-the-curtain wrangling that unfolds as the justices stake out positions and begin drafting opinions.
“You can definitely get a sense of what the justices care about from how the oral argument goes,” said Kermit Roosevelt, a professor at the University of Pennsylvania Carey Law School. “You can’t always tell how they’re going to vote but you can get a sense of which issues they think are important.”
Many of the legal theories raised in the insurrection dispute are new to the Supreme Court. Though the 14th Amendment was ratified in 1868, the court has never before wrestled with a claim based on the insurrection clause.
The case, Trump v. Anderson, is on appeal from the Colorado Supreme Court, which in December ruled that the former president is no longer eligible to serve. In addition to Colorado, the top election official in Maine reached a similar conclusion in late December and determined Trump is constitutionally barred from office.
Similar cases were rejected on procedural grounds in other states, where well-funded legal groups filed lawsuits on behalf of voters.
Trump is simultaneously juggling four criminal prosecutions – including one that could reach the Supreme Court in coming days dealing with whether he can claim immunity from criminal prosecution. Not only has Trump repeatedly denied wrongdoing in those cases, he has lumped his legal woes together and tried to use them to his advantage on the campaign trail.
While the stakes for Trump are enormous, they are also significant for the Supreme Court. Approval ratings of the court have sunk to record lows and a large portion of the country will likely be enraged by the decision in the ballot case.
One element to watch during arguments Thursday will be how much attention the justices pay to the narrow off-ramps Trump is offering the court to decide the case in his favor without addressing directly whether he took part in an insurrection. The six Republican and independent voters who sued Trump filled court papers with harrowing pictures from the attack on the US Capitol and striking language about the chaos that unfolded that day.
But if the justices appear to be mostly focused on more technical points, that may be a good sign for Trump.
“A lot of justices are going to be looking for a way to get out of this,” said Michael Gerhardt, a law professor at the University of North Carolina at Chapel Hill. “The court will be reluctant to decide the merits of this because that would then place the court in the middle of the election.”
Trump and his allies argue the insurrection ban doesn’t apply to former presidents and, if it did, that Colorado courts have no authority to enforce it in this way. His briefs have focused less on the events of January 6 and more on his lead in the campaign for the Republican presidential nomination.
The first sentence of Trump’s final brief notes he won the Iowa caucuses last month and the New Hampshire primary days later. Broadly, he argues that voters, not courts, should choose the president.
Interplay between John Roberts and Elena Kagan may be key
Though among the least talkative on the bench, Chief Justice John Roberts is always important to watch during arguments. Roberts, concerned about the court’s reputation, will likely seek to settle the politically fraught case in a narrow way that can bring together the court’s six conservatives and three liberals.
Roberts’ questions could signal what he thinks is the best path to that outcome.
That raises another dynamic to watch: The arguments Thursday may offer insight into the appetite within the court’s liberal wing – Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – to find a compromise with Roberts. The chief justice and Kagan, who was nominated in 2010 by President Barack Obama, have found ways to work together in recent years.
“Roberts is going to have a lot of incentive to get rid of this,” Gerhardt said. “He may have some support in trying to get rid of it, but I think that’s going to be foremost in his mind.”
CNN’s Marshall Cohen contributed to this report.
