Mandel Gunn/AFP/Getty Images
The United States Supreme Court in Washington, DC.
CNN
—
The Supreme Court is set to hear arguments on Thursday in a historic challenge to Donald Trump's voting eligibility, leaving the high court buzzing as the former president's second-term campaign threatens to come to an abrupt end. It will lead to an election.
Not since the court decided Bush v. Gore after the 2000 election have the nine justices been asked to delve into a case so intertwined with an ongoing presidential election. Although the appeal is ostensibly about Colorado's vote, both sides acknowledge that decisions later this year will have national implications.
Standing before the justices in an ornate courtroom, lawyers representing the six voters who challenged Trump's eligibility said that the 14th Amendment's post-Civil War “prohibition against insurrection” He claims his past actions are preventing him from running for re-election, as he is a leading candidate for the Republican nomination. Until the storming of the U.S. Capitol on January 6, 2021.
Mr. Trump's lawyers will argue that this provision does not apply to the former president.
The court had scheduled 80 minutes for arguments to begin shortly after 10 a.m. ET, but judges routinely exceeded the set time on more mundane matters. They are likely to put hours of pressure on the lawyers arguing in front of them.
Although sometimes inconclusive, the arguments often provide important insight into how the judge thinks about the question at hand. While debates may not determine the outcome of a case, they can shape the behind-the-scenes battles that unfold as justices take positions and begin drafting their opinions.
Kermit Roosevelt, a professor at the University of Pennsylvania's Carey School of Law, said, “You can definitely tell what the justices are focusing on by looking at how the oral arguments go.'' “You can't always know how they will vote, but you can know which issues they think are important.”
Many of the legal theories raised in the insurrection dispute are new to the Supreme Court. Although the Fourteenth Amendment was ratified in 1868, the courts had never before addressed claims under the Insurrection Clause.
The case, Trump v. Anderson, is on appeal to the Colorado Supreme Court, which ruled in December that the former president is no longer eligible to serve as president. In addition to Colorado, top election officials in Maine reached a similar conclusion in late December, ruling that Trump is constitutionally excluded from the presidency.
Similar lawsuits in other states have been dismissed on procedural grounds, and well-funded legal groups have filed lawsuits on behalf of voters.
President Trump is pursuing four parallel criminal charges, one of which could reach the Supreme Court within days to determine whether he can claim immunity from criminal prosecution. Not only has Trump repeatedly denied any wrongdoing in these cases, but he has tried to lump together his own legal problems and use them to his campaign advantage.
The stakes are huge for Trump, but they also matter to the Supreme Court. Approval ratings for the court have fallen to record lows, and decisions in voting cases are likely to enrage large segments of the population.
One notable element of Thursday's arguments was the narrow exit the justices offered the court to rule in his favor, without directly addressing whether Trump participated in the insurrection. How much attention do we pay? The six Republicans and independent voters who sued Trump filled court papers with harrowing photos of the storming of the U.S. Capitol and shocking words about the chaos that day.
But if the justices seem to be primarily focused on more technical points, that could bode well for President Trump.
“Many judges are going to be looking for a way out of this situation,” said Michael Gerhardt, a law professor at the University of North Carolina at Chapel Hill. “Courts will be reluctant to rule on the merits of this case because it would put the court in the middle of an election.”
Mr. Trump and his allies argue that the insurrection ban does not apply to former presidents, and even if it did, Colorado courts lack the authority to enforce it in this way. . His brief focuses less on the events of January 6 and more on his lead in the race for the Republican presidential nomination.
The first sentence of President Trump's last short memo was the one he won in the Iowa caucuses last month and the New Hampshire primary a few days later. Broadly speaking, he argues that voters, not courts, should choose the president.
John Roberts and Elena Kagan's interaction could be key
Chief Justice John Roberts may be the quietest man on the court, but he is always the focus of attention during arguments. Mr. Roberts is concerned about the court's reputation and is likely to try to resolve politically difficult cases in a narrow way that brings together the court's six conservatives and three liberals.
Roberts' questions may indicate what he thinks is the best path to that outcome.
This brings up another dynamic that is worth noting. Thursday's arguments may provide insight into the desire 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 appointed by President Barack Obama in 2010, have found ways to work together in recent years.
“Roberts would have a huge incentive to get rid of this,” Gerhardt said. “He may have some support to brush it off, but I think that's going to be the first thing in his mind.”
CNN's Marshall Cohen contributed to this report.
