The Supreme Court heard arguments today in one of the most consequential election cases in our nation’s history.

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Holding court

The Supreme Court heard arguments today in one of the most consequential election cases ([link removed]) in our nation’s history.

The justices are considering whether the insurrection clause of the 14th Amendment disqualifies former President Donald Trump from holding public office. The case out of Colorado appeared before the high court after the state’s Supreme Court ruled that Trump, who faces a packed court calendar ([link removed]) this election year, could not appear on the 2024 primary ballot, citing his role in the Jan. 6 attack.

The PBS NewsHour explores how the high court’s decision could affect the 2024 election.

This newsletter was compiled by Joshua Barajas ([link removed]) .
WHAT PROVISION ARE THE JUSTICES CONSIDERING?
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Courtroom sketch by Bill Hennessy for PBS NewsHour

For the first time in U.S. history, the Supreme Court heard a case over Section 3, a rarely considered provision of the 14th Amendment.

What is Section 3? The clause, in full, is a little more than 100 words ([link removed]) . It says no one who took an oath to support the Constitution can ever hold office again if they "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Manisha Sinha, a historian at the University of Connecticut, said the framers decided to pass the 14th Amendment a few years after the Civil War “because they wanted to discourage political violence ([link removed]) , which is exactly what is happening in the postwar South at this time.”

Sinha told the NewsHour that it’s “quite clear” that Section 3 would apply to the president of the United States, a conclusion Trump’s legal team argued against ([link removed]) Thursday. Trump lawyer Jonathan Mitchell told justices in oral arguments that the Jan. 6 attack was “a riot, not an insurrection.”

Colorado’s top court ruled in December that Trump violated this clause, concluding that his actions leading up to and during the violence of the Jan. 6, 2021, attack on the U.S. Capitol amounted to an insurrection.

The case, Trump v. Anderson, was brought forth by six Colorado voters ([link removed]) , all of whom are Republican or unaffiliated voters. The lead respondent in the case is Norma Anderson, a 91-year-old lifelong Republican ([link removed]) .

The central questions before the justices: Would the Civil War-era insurrection clause of the 14th Amendment ultimately disqualify Donald Trump from holding higher office?

However the justices decide, their decision is expected to have a significant effect on the upcoming presidential election.

WHAT WE LEARNED FROM THE LANDMARK ORAL ARGUMENTS

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Listen to Thursday's oral arguments at the Supreme Court in the player above.

By Marcia Coyle, @MarciaCoyle ([link removed])
U.S. Supreme Court Analyst

Before a packed courtroom audience, the U.S. Supreme Court heard arguments Thursday on whether former President Donald Trump is ineligible for the presidency under a key section of the U.S. Constitution.

When the more than two hours of arguments had concluded, a majority of justices appeared ready to reverse a ruling by the Colorado Supreme Court that Trump was ineligible because he engaged in the Jan. 6 insurrection at the U.S. Capitol.

But predictions of what the high court may do in a particular case are always risky because the justices are excellent at playing devil’s advocate. But here are some of the key questions that they raised.

Listen to the arguments here ([link removed]) . You can also read the full transcript here ([link removed]) .

Who has the power?

Much of the arguments focused on whether Colorado — and states in general — have the constitutional authority to enforce Section 3.

Trump’s attorney Jonathan Mitchell argued that the states have no role. He relied heavily on a circuit court decision from 1869 ([link removed]) , in which Justice Samuel Chase said Section 3 was not “self-executing” as many other parts of the Constitution are. Congress would have to pass legislation enabling the states to enforce Section 3, the attorney said, and it has not done so.

Justice Sonia Sotomayor was not impressed with the Chase decision. She said it was not a precedent, since it was not a Supreme Court decision. History, she said, shows many examples of states relying on Section 3 to ban insurrectionists from state offices.

“You’re basically telling us that you want us to go two steps further,” she said during arguments. “This is a complete pre-emption [under the Constitution] in a way that’s very rare.”
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Courtroom sketch by Bill Hennessy for PBS NewsHour
Chief Justice John Roberts posed the hypothetical of a potential candidate going to a state secretary of state and announcing he is an insurrectionist and meets the demands of Section 3. He asked Trump’s attorney what the secretary could do.

The secretary could not keep that insurrectionist off the ballot, the attorney answered. Doing so would be altering the qualifications for office in the Constitution, he argued. The state would be requiring the candidate to get a waiver from Congress even before he held office. Section 3 only bans insurrectionists from holding office, not running for office, he added.

The lawyer for Colorado disagreed. Jason Murray countered that states’ authority to enforce Section 3 comes from their broad power under Article II of the Constitution to run elections. Section 3, he argued, is just another ballot qualification like the age — 35 — to be president.

Justice Clarence Thomas pressed the attorney repeatedly for historical examples of states that had disqualified non-state, national candidates for office. The attorney was unable to provide examples but he said elections were different in the post-Civil War period.

Roberts told the attorney the “whole point” of the 14th Amendment was to restrict state power and to augment federal power, so wouldn’t states be the “last place” to lodge this authority?

The lawyer repeated that Article II gave states broad power to act in the conduct of elections.

What are the consequences?

The Colorado lawyer’s argument was soon dominated by the justices’ discussion and questions on the consequences of upholding the decision by the Colorado Supreme Court. The chief justice said the “plain consequences” would be disqualification efforts by other states focused on the opposite political party’s candidates.

“It would come down to just a handful of states that are going to decide the presidential election,” Roberts said. “That’s a pretty daunting consequence.”

Justice Samuel Alito noted that states could have different standards for what constituted an insurrection and different burdens of proof. How would the court review the challenges likely to come?

And Justice Ketanji Brown Jackson asked why the framers would use a structure that creates disunity.

What would this mean for democracy?

Justice Brett Kavanaugh noted that Trump’s case did not involve a criminal conviction for insurrection.

“If the concern you have is that insurrectionists should not be able to hold federal office, there is a tool to ensure that that does not happen,” he said. A federal criminal statute on insurrection includes automatic disabling upon conviction, he added.

Kavanaugh also said accepting Colorado’s arguments would result in “disenfranchising votes to a significant degree.”

But Colorado’s lawyer Murray said the court would be safeguarding future elections. “This case illustrates the danger,” he said, saying that Trump tried to disenfranchise millions of Americans who voted against him. “The Constitution doesn’t require that he be given another chance.”

What about other issues?

The justices did not spend much time on other issues raised by the Trump and Colorado lawyers. Although he said the term “insurrection” “jumps out” of Section 3, Kavanaugh only questioned what it means, who enforces it and what kind of process is needed.

“These are difficult questions,” he said, and Congress has the primary role in answering them, according to that decision from the 1800s by Justice Chase.

They did spend some time on the question of whether the president is an “officer of the United States,” but it did not seem to get a lot of traction.

What’s next?

The justices could issue an opinion at any time, but given how quickly they scheduled arguments in Trump v. Anderson, they seem very aware of approaching election deadlines.

They are likely to move faster than normal to resolve the case.
More on the historic case from our coverage:
* After the Arguments. What Supreme Court justices signaled in Thursday’s hearing ([link removed]) on removing Trump from the Colorado ballot.
* Bookmark This. While we wait for a ruling in this major election case, here are 10 tips for reading a Supreme Court case ([link removed]) if you’re not a lawyer, courtesy of The Conversation.
* Trump’s 2024 Trials. The ballot ban case is just one of several legal cases ([link removed]) Trump faces as he campaigns for a second presidential term.

A FINAL THOUGHT

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Watch the segment in the player above.

Heading into the landmark oral questions, confidence in the Supreme Court was already at a record low ([link removed](AP)%20%E2%80%94%20Confidence%20in,a%20major%20trends%20survey%20shows.) .

Following the high court’s Dobbs decision that dissolved the constitutional right to abortion, public support of the institution dropped to its lowest point in at least 50 years, a 2022 survey found.

Scrutiny of the court’s credibility also deepened after several ([link removed]) media ([link removed]) reports ([link removed]) raised questions over Justice Clarence Thomas’ financial dealings with wealthy friends and his wife’s involvement in Jan. 6.

And there’s still the matter of a federal appeals court rejecting Trump’s immunity claims ([link removed]) , something that will come before the Supreme Court as the former president continues his appeal.

The court is aware of all of this, Supreme Court analyst Marcia Coyle said.

“In a lot of ways, the case today is a lose-lose," she said. "Whoever wins — or whoever loses — there's going to be criticism of the court and probably political criticism."

“So, it's tough. But that's what they get paid to do.”
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