Supreme Court leans toward keeping Trump on presidential ballots
Justices grilled attorneys but avoided discussions of Jan. 6
Sahar Smith donned a “Trump 2024” glitter pin and arrived at the Supreme Court at 3:30 a.m., hoping for a coveted seat inside to listen to the morning’s oral arguments. She was one of roughly 100 members of the public, some of whom camped out on the sidewalk all night, vying for the limited seats to hear the landmark election case. Smith did not make it inside, but she watched as protesters and press showed up in the morning, and she listened to the oral arguments online.
At stake is whether states may individually remove former President Donald Trump from their ballots for violating the insurrection clause of the 14th Amendment. The Colorado Supreme Court said yes, and appeals made their way to the nation’s highest court in less than two months.
“People have the right to choose their elected officials, especially on a presidential ballot. They have the right to choose and not have their voice be removed,” Smith told me. “I don’t believe he’s guilty of insurrection, and I’m very excited for the election to vote for Trump.”
The arguments lasted just over two hours. While the court usually waits until June, the last month of its term, to release high-profile case decisions, it is unlikely to wait that long on an election case with presidential primaries already underway.
Who are the parties involved?
Norma Anderson, 91, is the lead plaintiff in the landmark case against Trump. She is a well-known figure in Colorado: She was the first female majority leader in both chambers of the legislature. Anderson, a Republican, served in the statehouse for 12 years before retiring due to term limits. Since she left in 2006, a Democratic candidate has won the state in every presidential election.
“I was born four months before FDR was elected,” Anderson told CNN. “I’ve lived through a lot of presidents. Some I liked, some I didn’t. But not one of them caused an insurrection until Donald Trump.”
She said she watched footage of the riot at the U.S. Capitol on Jan. 6, 2021, and determined that Trump should not hold office again. When Citizens for Responsibility and Ethics in Washington asked her to join the case, she readily agreed.
The former president did not attend the arguments today, but in a video address from his Mar-a-Lago residence in Florida he said he thought the arguments went well.
“I hope that democracy in this country will continue because right now we have a very tough situation with all of the radical left ideas with the weaponization of politics. They weaponize it like it’s never been weaponized before,” he said.
Who was arguing?
Lawyer Jonathan Mitchell represented Trump. This is the sixth case he’s argued before the Supreme Court. Mitchell previously worked as the Texas solicitor general, defending pro-life heartbeat laws that became precursors to the overturning of Roe v. Wade. In 2001, he clerked for former U.S. District Judge J. Michael Luttig, who in retirement has written op-eds stating Trump disqualified himself from future elections with his actions on Jan. 6. From 2002 to 2003, Mitchell clerked for the late Justice Antonin Scalia.
Denver attorney Jason Murray spearheaded arguments on behalf of Anderson and Colorado voters in his first case before the Supreme Court. He also argued the case before the Colorado Supreme Court. A graduate of Harvard Law School, he previously clerked for Justices Neil Gorsuch and Elena Kagan.
Colorado Solicitor General Shannon Stevenson was the last attorney to speak, representing Secretary of State Jena Griswold. She filed a brief that argued state officials have the authority to enforce state court decisions, even when it comes to a national candidate. Most of the justices did not have questions for her.
What did the justices focus on?
Conservative and liberal justices were concerned with uniformity, or whether each state can make a different decision about who may remain on the ballot. Chief Justice John Roberts raised the hypothetical of other states removing President Joe Biden from the ballot in retaliation.
“It’ll come down to just a handful of states that are going to decide the presidential election,” Roberts said. “That’s a pretty daunting consequence.”
Most of the first half of arguments focused on whether the 14th Amendment is “self-executing,” meaning whether it automatically applies and which authority enforces it. The justices also tackled Mitchell’s argument that because the 14th Amendment does not specifically mention the president, it does not apply to that office. It states that “no person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States or under any state” if that person has engaged in insurrection.
“Why didn't they put the word ‘president’ in the very enumerated list in Section 3?” Justice Ketanji Brown Jackson asked. “The thing that really is troubling to me is I totally understand your argument, but they were listing people that were barred, and president is not there.”
Justice Sonia Sotomayor pushed back against the argument that the president is not an officer of the United States. “That seems to benefit only your client,” she told Mitchell. “It’s a bit of a gerrymandered rule.”
Roberts expressed skepticism that the 14th Amendment goes so far as to allow each state to decide which candidates are allowed on their ballots.
“The whole point of the 14th Amendment was to restrict state power, right?” he asked. Roughly an hour in, the justices asked Trump’s counsel whether insurrection is the appropriate terminology here.
“This was a riot. It was not an insurrection,” Mitchell answered. “The events were shameful, criminal, violent — all of those things, but it did not qualify as insurrection as that term is used in Section 3.”
What did the public say?
“You can’t have each state doing their own thing as to who’s going to qualify and who’s not when the 14th Amendment specifically states what the qualifications are,” said Scott Reisch, an attorney from Colorado who filed a friend-of-the-court brief in the case. “I think Trump wins 9-0.”
Paul Storm, an intellectual property attorney from Texas, hopped into the line for members of the Supreme Court bar at 8 a.m. He chatted with fellow attendees about court experience, but this was busier than some of the other less prominent arguments he’s attended. In security, officers took all electronics, even his calculator, in adherence to strict rules that only pen and paper is allowed in the chamber.
“I didn’t expect the national uniformity issue to be as important as it was, and I think it’s going to carry the day and keep Trump on the ballot,” Storm told me. “It’s a way for them to dodge some of the thornier issues. I think they’re going to say, ‘We’re not talking about whether he is an insurrectionist. Reasonable minds can differ on that. But we need a uniform system.’”
Richard Cohn, a retired accountant from nearby Gaithersburg, Md., didn’t make the cut to get inside. He said he does not like Trump’s personality or his presidential record, but he said voters should have the chance to pick whichever candidate they like.
“I’m not sure that Jan. 6 was an insurrection or [just] a demonstration that went out of control,” Cohn said from the Supreme Court steps. “I don’t like his behavior. I think it’s outrageously unpresidential. But the people like him, so I guess he should at least be on the ballot.”
Greta Klassen from Indiana and Micah Buckwalter from Virginia showed up with pillows and blankets to hold their spot in line at 10 p.m. last night. They also did not get inside. But they waited outside to listen to the arguments online, saying that it’s an historic case either way.
“I don’t think he should be on the ballot,” Klassen said. “But there will probably be a big backlash if he isn’t, so I’m apprehensive either way.”
Some protesters demonstrated outside the court with a black flag that read “Remove Trump.” They chanted that the former president is a traitor and urged the court to avoid future Jan. 6-like riots by leaving him off the ballot this November.
Today, Trump is on the caucus ballot in Nevada, where he will fly this afternoon to host a watch party.