Constitutional and political history will be made tomorrow, and Americans will be able to witness it as it happens. It will be the Supreme Court’s hearing in the case testing whether Donald Trump will be disqualified from running for President. The final decision will come days, weeks or months later; no one knows exactly when.
If Trump decides to show up for the hearing, his coming and going would make a media spectacle, but inside the courtroom, his only role would be that of a silent spectator. Outside of the courts, the former President has argued that the three Justices appointed by him owe it to him to uphold his candidacy.
The Court’s hearing will be the first of two encounters, coming close together, that the Justices will have with Donald Trump’s legal troubles. By Monday, the Court is expected to receive a plea from Trump to help him avoid going to trial on criminal charges; he claims to be legally immune to prosecution. There is some overlap of that with the disqualification issue being discussed at Thursday’s hearing.
Tomorrow’s sound of the voices in the courtroom – the Justices on the bench and the lawyers at the lectern – will be available “live” online, and those planning to listen should expect it to last two hours or more. It is scheduled for 80 minutes, but the Court’s hearings almost always run beyond the time set.
If a listener can’t tune in to the hearing as it happens, it can be heard later in the day or days later – again, online. It will be recorded and become a permanent part of the case’s record.
Regular radio and television stations will provide some coverage of the hearing, but few, if any, will broadcast the hearing, end to end. On the Internet, the complete broadcast will be available at the Supreme Court’s site and on the C-Span TV network. (See below for specific listening instructions.)
There will be no witnesses; this is a hearing on an appeal, not a trial. No one outside of the courtroom will be able to see anything other than one or more “still” images; the Court does not permit “live” video of hearings. On the Court’s site, one will see only a picture of the empty bench. At C-Span, one will see stock photos of the Justices and the lawyers, as they speak.
All nine Justices are expected to be on the bench for the hearing. The pleas from some Democrats in Congress for Justice Clarence Thomas not to take part, because of his wife’s connection to the incidents at the Capitol on January 6, 2021, have had no effect: Thomas will take part.
As one listens to the hearing, it is important to keep in mind that the Court chose to consider this case from Colorado at this time and on a speeded-up schedule; it had no binding duty to do so. It could have waited for the dispute over Trump’s candidacy to develop in other states. It is also important to note that, although it took on the case, it has no binding duty to decide it: it could wind up taking a pass.
Normally, a hearing like this would start at 10 a.m. Tomorrow, however, the Court will be releasing some opinions in other cases that it has just decided, with Justices reciting from them. That, however, will not be broadcast. One should log on at 10, though, and wait for the hearing to begin.
It will begin this way: Chief Justice John G. Roberts, Jr., will say something like: “We’ll hear arguments this morning in number 23-719, Trump versus Anderson.” He will recognize the first lawyer, and that lawyer will be allowed two minutes to summarize, and then questioning from the bench will begin.
Why only three lawyers, and why the three who will appear? Trump’s lawyer – Jonathan F. Mitchell, a private attorney in Austin, TX — is there to ask the Court to overturn the Colorado state court decision that Trump is disqualified to run again. The lawyer for the six Colorado voters who challenged Trump, Jason C. Murray, a private attorney in Denver, is there to defend that decision. The third lawyer, appearing only because the Justices granted permission (State Solicitor General Shannon W. Stevenson of Denver) will defend the power of Colorado’s courts to have decided the controversy.
Of course, there are many others interested in the case, and 76 “friend-of-the-Court” briefs have been filed by those who have something to argue, from all sides of the controversy. One party acutely interested who will not be heard from, at all, is President Biden, a candidate for reelection. He and his campaign could have asked to join in, but did not. In fact, his campaign seems to be operating on the assumption that Trump will be on the ballot in November, that the contest to be Biden’s rival is over.
When the lawyers for the parties that are taking part go to the lectern, the hearing will follow a pattern: after the attorney’s two-minute opening, the Justices will immediately start questioning, in no particular order of the Justices (although Justice Thomas almost always goes first). This will be the liveliest part.
When that time of open exchanges finishes for each lawyer, Roberts will go from Justice to Justice, in order of seniority, giving each an undisturbed chance to briefly question the lawyer, taking turns. After those rounds with each lawyer, the hearing will end with Trump’s lawyer making a brief rebuttal. That lawyer gets the last word because it is Trump’s appeal.
Mitchell, Trump’s lawyer, will appear first and last, allotted 40 minutes overall. Second will be Murray, the lawyer for the Colorado voters (30 minutes). Third, State Solicitor General Stevenson, will be speaking for Colorado Secretary of State Jena Griswold (10 minutes). Do not expect any of them to stay within those limits, because of the rounds of questioning by the Justices. The allotted times are minimum allotments. The lawyers will appear separately; this is not a panel presentation.
The hearing will end with Roberts saying: “Thank you, counsel; the case is submitted.”
Even the most seasoned observers of the Court are usually unable to predict how the Court is ultimately going to rule, based upon the questions or comments of the Justices, but there can be hints, some quite revealing. From the Justices’ perspective, the hearing is their first full opportunity to engage each other on the issues; they do so by questioning the lawyers. The Justices do not address each other.
Before the hearing, each Justice, with their clerks, will have talked over the issues, probably at length, in their own chambers. There is no formal process for the Justices to talk together about the case before the hearing, although they sometimes do that individually. Each Justice is likely to come to the bench with some notion of how they will be leaning, and they will have read a “bench memo” from their own clerks, outlining what is at stake, as well as reading at least some of the legal briefs.
The case of Trump v. Anderson is complex, with many of the questions focused on the Constitution’s 14th Amendment and, specifically, on that Amendment’s Section 3. That is the provision that disqualifies, for life, a candidate for any office – federal or state – who has taken an oath to support the Constitution, but then engages in an “insurrection” or “rebellion” against the Constitution.
Quite a few of the issues have never been considered by the Supreme Court in the 156 years since the 14th Amendment was added to the Constitution. The issues are legal, not political in the partisan sense of who should run or who should win. Some Justices, however, may explore whether the Court should decide to leave it to the voters and some may examine the impact of any decision on the unfolding of the primary elections, which are already happening.
Although some observers of the Court have been speculating that the Justices will be most inclined to try to avoid deciding the bottom-line question of Trump’s eligibility, and the Justices do have that option, there is no evidence so far to back that up. The Court did choose on its own to get involved, when it had no legal obligation to do so. The Justices do have immensely wide discretion on how to rule in the end; any combination of five can prevail.
Examining the sizeable pile of briefs filed in the case, one can find more than two dozen potential issues. Any or all could come up in the hearing. They very likely will come in three general groups: (1) issues on court powers and procedures – including whether the Court will actually decide the case, (2) questions about the history of the 14th Amendment’s adoption and its meaning in 1868 and now, and (3) inquiries on how the Amendment does or could affect Trump’s opportunity to seek the Presidency.
Here are some of the questions that could be asked:
Court powers and procedures:
Is the case within the authority of the Supreme Court to rule, under the Constitution?
Are there standards the Court can use to decide Trump’s eligibility?
Is it premature to decide the case now?
Should the Court rule while the primary elections are occurring? Will a decision now, either way, confuse the voters?
Did the Colorado voters have a legal right to challenge Trump’s candidacy?
Did the state courts have authority to rule on his candidacy?
Are the parts of the state courts’ decisions based on state law binding on the Supreme Court?
Did state courts use a power that belongs to the state legislature, to decide candidate eligibility?
Was the procedure used by the state courts too limited to allow Trump to make his case?
The Fourteenth Amendment:
Is the Amendment’s disqualification clause, ratified in 1868, still in effect?
If still in effect, does it apply at all to presidential candidates?
Is it different from the three qualifications for the Presidency in the Constitution’s Article II (age, citizenship and residency) and, if so, what standards guide its use?
Does the fact that Article II limits a President’s term to four years – and thus a President must leave office at the end of a term if not elected anew – have any bearing on this case?
What is the relationship between the disqualification clause and the enforcement power given to Congress under the 14th Amendment? Must Congress pass some law to enforce it? In 1869, then-Chief Justice Samuel Chase interpreted the Amendment to require that; must today’s Court follow that ruling?
Does the Amendment allow state officials and state courts any role in deciding disqualification claims?
If states can be involved, what fair procedures must they use in enforcing the clause?
What constitutes an “insurrection” or “rebellion” under the clause?
Does the disqualification clause conflict with a candidate’s free-speech rights?
Does the qualification clause interfere with a political party’s right to choose its own candidates?
Must a candidate be convicted of a crime before facing disqualification?
What oath must a government official have violated in order to face disqualification?
Does the disqualification clause apply to Donald Trump and, if so, how?
What, factually, has been proven about Trump’s role related to the January 6, 2021, incident?
Must the facts about that role as established by Colorado courts be accepted as binding on the Court?
How do those facts relate to the text of the disqualification clause?
To what extent were his remarks at the rally on January 6 protected as free speech?
Does it make any difference that Trump has not been charged with the crime of insurrection?
Does it make any difference that Trump has not yet been convicted of any crime related to January 6?
Because the Colorado Republican Party prefers Trump as its candidate, is it entitled to have him on the ballot?
Was Trump treated fairly in the case as it unfolded in Colorado state courts? If not, what should the remedy be?
Once Thursday’s hearing ends, the Court will gather in private soon, probably later that day, and the Justices will cast a preliminary vote: affirm or reverse the Colorado Supreme Court decision against Trump. Each Justices will have a chance to explain how they vote. Based on the preliminary vote, Chief Justice Roberts (if he voted with the majority) will assign a Justice (or himself) to start drafting an opinion to be circulated. If Roberts is in dissent, the most senior Justice who voted in the majority takes on the assignment role.
The deliberation process then begins, working from the majority draft. Each Justice will notify the draft author whether they will join, write separately, or write a dissent. That process, done entirely behind closed doors, will last as long as it takes to get a decision that at least five Justices can support. The Court, however, has put this case on a fast track, so the decision may not be long delayed.
The Justices will have some incentive to move quickly in reaching a decision, due to the uncertainty about Trump’s candidacy as primary elections continue, to the need to get back to their regular hearing schedule for other cases being reviewed, and to have time to ponder what they will do – if anything – about the question of whether Trump has immunity to being prosecuted on any criminal charges.
Trump’s sweeping immunity plea failed on Tuesday in a unanimous decision by a federal appeals court in Washington, and Trump has until next Monday to ask the Justices to put that on hold until he can file an appeal challenging the decision. Of course, the immunity issue and the disqualification issue have something in common: they are both related to Trump’s role in the uprising at the Capitol in January 2021 and that assault on the Constitution. The Court, though, most likely will try to keep the two constitutional disputes separate.
———————-
The broadcast of tomorrow’s hearing in its “live” version (audio only, no video) and in its recorded version will be available for listening. It would be a good idea to log in just before 10, to be sure to catch the hearing when it begins. One option is the Court’s homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
Regular network and cable radio and television will be providing some programming as part of their regular news coverage, or special programs analyzing the hearing.
