FAQ: Trump, the 14th Amendment, and Thursday’s SCOTUS arguments

Here's what you need to know about this week's big arguments over the Colorado Supreme Court ruling that Trump "engaged in insurrection" and can't be on the ballot there.

On Thursday morning, the U.S. Supreme Court will be hearing oral arguments in the Donald Trump Fourteenth Amendment case out of Colorado.

Here’s what you need to know.

TOPLINE

Thurday’s arguments are over two main issues, although this preview will go into more detail below.

The court is hearing Donald Trump’s appeal of the Colorado Supreme Court’s decision that Trump is disqualified from being president under Section 3 of the Fourteenth Amendment and that, under Colorado law, he cannot be on the state’s presidential primary ballot because of that disqualification.

WHEN

The arguments will begin a little after 10 a.m. Thursday, when the justices will take the bench. First up, though, the court has announced that there is the possibility of opinions in previously argued cases on Thursday morning. They really didn’t need to do that, and it is going to unnecessarily complicate things if they release any notable opinions, but here we are.

The arguments are scheduled for an expanded 80 minutes — 40 minutes for each side — from the normal 60 minutes, but, in reality, the arguments will almost certainly go significantly longer, likely close to (or, given the stakes here, more than) double the allotted time. Due to changes made in recent years in how the court handles arguments, they have been generally taking nearly double the scheduled time. Each presentation consists of three parts:

• Each lawyer presenting gets a two-minute opening period to essentially give an uninterrupted opening statement.

• Then, there’s an extended period — usually about to the end of the scheduled time for that lawyer’s argument — where it is what arguments for the court have long been: a free-for-all question-and-answer period where any justice can ask any question at any time. This can allow justices to go back and forth with each other over areas where they might either disagree with one another or where they’re trying to find common ground.

• After that, an addition to arguments that came out of the virtual arguments when the court was not meeting in person during the early part of the pandemic, the justices have a period of arguments where each justice gets to ask questions uninterrupted. This begins with Chief Justice John Roberts and then goes in order of seniority, ending with Justice Ketanji Brown Jackson as the newest justice.

We do not know when a ruling will come down. The justices granted expedited review here, so we would expect quicker resolution in light of the requests for it and in light of the nature of the case, but, as we’ve seen elsewhere, timing questions are no sure thing. The sooner a ruling, the better for stability.

WHERE

The arguments will be held in person at the Supreme Court, and Law Dork will be there. I will be in the courtroom — where we can only take pen and paper, no phones or laptops — for the arguments. Because the Supreme Court does not provide video of arguments, unlike some other courts, the only way to see what happens in the courtroom — how the justices interact with one another, what’s happening at the various counsels’ tables, the presence of people in the courtroom, and so on — is to be there.

That said, the court has provided an audio livestream during arguments since the start of the virtual arguments during the early pandemic, and that livestream will be the way to listen to arguments if you are not at the court. C-SPAN will also separately host the livestream, and I imagine many other sources will as well.

WHO

All nine justices are expected to participate. There are good arguments to be made for Justice Clarence Thomas’s recusal, but he participated in the consideration of whether to hear the case — as his recusal was not noted at the time, as it would have been if he had recused himself — and there is no reason to believe that he will recuse himself from the arguments or decision.

Jonathan Mitchell — the former solicitor general of Texas who was the man behind Texas’s S.B. 8 vigilante enforcement abortion ban and many far-right cases since — will be arguing for Donald Trump. As Trump is the petitioner, the party who lost below, Mitchell will start the arguments and will save 5 minutes of his assigned 40 minutes for rebuttal to conclude the arguments.

Jason Murray, a partner at Olson Grimsley in Colorado, is arguing for the Republican and independent voters who brought the challenge to Trump’s inclusion on the Republican primary ballot. Murray clerked for two of the justices previously — for Justice Elena Kagan on the Supreme Court and for Justice Neil Gorsuch when he was an appellate judge on the U.S. Court of Appeals for the Tenth Circuit. He was joined on the briefs in the case by other Colorado lawyers, as well as from Citizens for Responsibility and Ethics in Washington and the board chair of Common Cause in her role as a lawyer. Murray will have 30 minutes — the time originally allotted to him before the justices expanded the time — to make his case.

Then, Colorado Solicitor General Shannon Stevenson will be arguing for Colorado Secretary of State Jena Griswold. She will have 10 minutes to argue. Although she had sought 15 minutes in addition to the hour previously set, the court instead gave her 10 minutes and added 10 minutes to Trump’s argument. Notably, the challengers had opposed giving Griswold argument time, arguing that Griswold wouldn’t be bringing different arguments to the justices and hadn’t participated in arguments at the Colorado Supreme Court.

A notable “who not” is U.S. Solicitor General Elizabeth Prelogar. The United States, through the Justice Department, has stayed out of the case completely, filing no brief and thus seeking no argument time. In some ways, given the situation, this makes sense. But, it is nonetheless a little strange for these arguments over the Fourteenth Amendment to be taking place with the Justice Department — founded, as Attorney General Merrick Garland has said, “to secure the civil rights promised by the 13th, 14th and 15th Amendments” — absent from the arguments altogether.

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WHAT

As with most cases, it’s important to know — going in to the arguments — what question the court has said it will be answering.

Here, the justice granted review to Trump’s request, which presented a direct and deceivingly simple question. As the petition put it:

This simplifies things on the surface, but it also opened the door for Trump, the Colorado Republican Party, and people submitting amicus curiae (friend of the court) briefs — non-parties — to argue essentially any basis for the U.S. Supreme Court to reverse the Colorado Supreme Court. (This could expand the time that arguments take.)

Along with that, the justices have not acted on the Colorado Republican Party’s separate request — which raised three specific questions for the justices to resolve, two of which related to the specifics of Section 3 of the Fourteenth Amendment and whether it applies to Trump’s actions surrounding Jan. 6, 2021. They have instead held that petition, likely until the decision comes down in this case, at which point it can act on it accordingly.

As such, here are the six main issues that the many briefs have put at the center of the arguments — the first half relating to the Trump end of this question and the second half relating to the Colorado end of the question:

1. Does Section 3 of the Fourteenth Amendment cover a president who engaged in insurrection? This is really two questions: Is the president is “an officer the United States, and does the president take “an oath … to support the Constitution of the United States”? These are arguments that attempt to sound very serious and formalistic, but ultimately should not pass muster. The arguments include that the president can’t be an officer because the Constitution details how the president appoints officers and, as Trump’s lawyers wrote, the president “does not (and cannot) appoint or commission himself.” The oath argument is, incredibly, worse, asserting that the president’s oath to “preserve, protect, and defend” the Constitution — not to “support” it.

2. Does Section 3 disqualification include the presidency? This is a question of whether the presidency is an “office … under the United States”? As with the first, this is a formalistic — and I think, even weaker — argument that words do not mean what any ordinary person would think they mean.

3. Had Donald Trump “engaged in insurrection” under Section 3 of the Fourteenth Amendment? This is where questions arise about how we decide whether Trump did the deed. In their petition for a writ of certiorari, Trump’s lawyers stated, “The Court should also reverse the Colorado Supreme Court’s holding that President Trump ‘engaged in insurrection,’” and the brief went on to argue that Jan. 6, 2021 was not an “insurrection,” as intended by Section 3, and that, regardless, Trump had not “engaged in insurrection.” The Colorado courts decided otherwise, including after a five-day trial.

   

4. Does Section 3 of the Fourteenth Amendment allow states to act without additional authorization from Congress? This is a question of whether Section 3 of the Fourteenth Amendment is “self-executing,” meaning, is it in effect by its own terms, without Congress needing to do anything more. If Section 3 is self-executing, then it is the act of having “engaged in insurrection” that renders a covered person disqualified. If it is not self-executing, then there would need to be legislation passed setting forth how Section 3 is to be implemented. Opponents of this issue point to Section 5 of the Fourteenth Amendment for evidence that Section 3 is not self-executing, but others reasonably point to the fact that the rest of the Civil War amendments, including Fourteenth Amendment provisions, have been held to be self-executing.

5. Does the U.S. Constitution allow state courts to enforce Section 3 of the Fourteenth Amendment? This is the “Electors Clause” argument. It is, essentially, a next-case argument that follows on last term’s rejection of the “independent state legislature” scheme. In Mitchell’s brief for Trump, he argued that the U.S. Supreme Court can and should overrule the Colorado Supreme Court in its interpretation of state law.

6. Does Colorado law allow the Colorado courts to conclude that Trump violated Section 3 of the Fourteenth Amendment and order that he be removed from a primary ballot? The court would not ordinarily review a state court’s conclusion about state law, unless there is a federal constitutional reason to disturb the state court ruling. If the U.S. Supreme Court were to decide any of the first four questions as Trump wishes, then it would have a constitutional basis for reversing. However, if we get into this sixth question in any detail on Thursday, it almost certainly means that at least some justices think that Trump’s lawyers have made a reasonable argument in the fifth question.

Party merits briefs:

• Donald Trump

• Colorado Republican Party (Colorado Republican State Central Committee)

• Republican and independent electors (the Anderson challengers)

• Colorado Secretary of State Jena Griswold

• Donald Trump reply

• Colorado Republican Party reply

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WHY

We are here because Donald Trump did not like the results of — and signaled ahead of time that he would not accept a loss in — the 2020 presidential election.

From the moment the polls closed through to Jan. 6, 2021, as well as before that period and long past it, Trump sowed doubt about that election and our democracy.

Now, he seeks to run for president again.

It is not undemocratic to protect the democratic nature of our nation against those who would end it.

The nation, in the aftermath of the Civil War, decided that people who had pledged an oath to support the U.S. Constitution and then engaged in insurrection should be blocked from holding office under that Constitution.

That’s what Trump did, and that’s what the Colorado Supreme Court held.

Yes, this is a difficult moment, but it is not ultimately a difficult case.

And though this difficult moment does not come to an end if the court affirms the Colorado Supreme Court, it is a necessary step in protecting constitutional order.

It is for that reason, as Michigan Secretary of State Jocelyn Benson argued, that the U.S. Supreme Court needs to answer these Section 3 questions — and not hinge a ruling on the Colorado questions.

As I wrote, they need to rule — as Trump asked them to do — on whether he “engaged in insurrection” disqualifying him from the presidency under Section 3 of the Fourteenth Amendment. They need to do that, rather than simply ruling that Colorado has the right to make that conclusion, in order to resolve this matter definitively.

Even then, there will still be questions about what happens next, as states act accordingly as their laws allow or require. It likely will require the Republican Party to make hard decisions. It ultimately could end up back in Congress, which I really do not want to think about right now. But, the Supreme Court will have done its duty in enforcing the Fourteenth Amendment as intended.

If it does not do so, what then? Well, as with all rulings, it depends. But, it will require at least two things. It will require addressing the Supreme Court’s failure to meet the moment, and it will require defeating Trump at the ballot box.