As arguments begin this morning in a historic challenge to Donald Trump’s eligibility to appear on the ballot, they will thrust the Supreme 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.
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.
Here’s what to watch for:
Trump ballot fight pushes high court into unchartered territory: 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. 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.
Will justices look for ways to rule without saying if Trump was an insurrectionist? 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.”
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. 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.
CNN’s Marshall Cohen contributed to this report.
