So voters have already started voting in the Republican presidential primary. We've talked about it on the show a few times, and former President Donald Trump is two for two so far, with dominating wins in Iowa and New Hampshire. As of this moment, he is on track to lock up a third straight nomination. But can he seal the deal if he's not on the ballot in every state?

The Colorado Supreme Court get this has just ruled on a challenge to Donald Trump's appearance on the state's 2024 ballot.

The Colorado Supreme Court ruling just moments ago that former President Trump should be removed. Now, the consequences of this decision are obviously enormous.

'You might remember. Back in December, Colorado's highest court said Trump was ineligible for office under the 14th amendment, so-called insurrection ban. Now, the court immediately paused the ruling because they knew Trump would appeal it all the way up to the U.S. Supreme Court. Well, later this week, the High Court will hear the case. I guess this week is CNN senior Supreme Court analyst Joan Biskupic. We're going to talk about how both sides plan to lay out their arguments and how the ruling could alter American democracy as we know it from CNN, this is One thing. I'm David Rind.

Joan, I want to start by looking at the actual text of the US Constitution that is at the heart of what the Supreme Court will be scrutinizing this week. Can you just read it for me?

Yes. And now let me tell our audience this is going to be a mouthful. But trust me, all nine justices will be parsing these words during oral arguments as they go through the briefs. So they're important. Section three of the 14th amendment says no person shall hold any office under the United States who, having previously taken an oath as a member of Congress, or is any officer of the United States to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof? Now, I do want to mention that I did have a couple of little ellipses in there, but you can tell it was already long enough.

Yeah, yeah, there's a lot there. I'm not a lawyer, but to me, what that says is that somebody who, you know, engaged in insurrection or rebellion and kind of worked in some kind of office for the United States, can't hold office again. Is that the basic gist?

Yes, that's the idea. It was intended, right after the Civil War, targeting former Confederate leaders to make sure that they did not return to office.

So how are both sides going to be arguing this at the Supreme Court?

Okay. To boil it down, Trump's legal team is focused on the first part. The part when I referred to, you know, an officer of the United States. Now the challengers focus on the second part, the insurrectionist part. And let me explain. Former President Donald Trump says that he is not a, quote, officer of the United States, as that term is used in this section three of the 14th amendment or in other places in the Constitution. Now, regular people out there might be thinking, well, the president is the chief executive officer.

He was the president.

Exactly. How can he not be a, quote, officer of the United States? But, the Trump lawyers are taking a very textualist view of it and saying that an officer of the United States, as the term was used in the Constitution, is not covered by it. And they also point to the oaths that the president and other officers of the US take that are different. What Jonathan Mitchell, the lead lawyer for Donald Trump, stresses is the president swears a different oath, as set forth in article two, in which he promises to preserve, protect and defend the Constitution of the United States. And nowhere is the specific word support, which is in section three of the 14th amendment. No. Where is the word support used? Now you can tell that I'm talking about, you know, these discrete terms that, you know, could make some people's eyes glaze over, but this might be exactly what the justices focus on. And then let me just give the challenger side real quickly.

Yeah. What's their argument?

Yes. They home in on insurrection and in their brief that was just submitted recently. They stress right at the outset the most violent attack on our nation's capitol since the War of 1812, an attack which obstructed the peaceful transfer of presidential power for the first time in American history, meet any plausible definition of insurrection against the Constitution.

When it comes to Trump's actions or inactions. On January 6th, when we're talking about the actual insurrection part of this, how much does that matter here in this specific case?

Well, a trial court judge in Colorado found that Donald Trump had actually engaged in an insurrection. Now you have people on the other side who say, well, you know, anybody who would be, in the end, deemed an insurrectionist would have had to have been charged in some way with it, or that there would have been much more of a need for a real evidentiary hearing. But I'm just going to cut right through that and say that I'm not sure the Supreme Court's even going to reach that issue. In fact, I'm sure a majority of the justices do not want to even go near the actual insurrectionist issue of what Donald Trump did or didn't do on January 6th. I have a feeling that they will be much more focused on some of the threshold issues of who is an officer of the United States. What kind of oath must you have taken? You know all these other questions, including here's a very basic one. Should this section of the Constitution be enforced only based on some legislation from Congress, rather than automatically be executed through judicial decisions?

I realize this theory, and this part of this amendment has pretty much been untested in modern times. So what is the wider legal community? Think about it.

Well, you have very smart people on both sides. Donald Trump has the broader legal community that's tied to politics for Republican politics. Now the challengers have some really good conservative thinkers who, you know, you might have thought, well, wouldn't they be behind Trump? No, no. One of the most prominent on that side is former U.S. appellate judge Michael Luttig. So both sides have good arguments, but both sides also have tricky arguments. And as you say, this simply hasn't been tested in modern times. And then you have the political overlay that just cannot be ignored. Even many liberal lawyers, liberal commentators and jurists, even who would never, ever cast a vote for Donald Trump under any circumstances, likely believe that whether he stays on the ballot is not a question for the judiciary, but more a matter to be left to the voters or to the political branches.

On a technical level, Joan, this case is just about Colorado, right? But what could ruling mean for the rest of the country as ballots get prepared?

You're right that this case came from Colorado and in a different kind of world, the justices could have just decided based on some of the procedures in Colorado. But already this case is so much larger because voters in other states have challenged Donald Trump's position on the ballot. We're going to have a ruling from the justices that will affect every single state in America and where Donald Trump appears on primary ballots, and what happens for the November election. So it's huge.

Yeah. I was going to say you've covered the court for a long time. So can you give us some perspective, like what is at stake for the court and for the country as we head closer to this election in November?

So much is at stake in our democracy. You know, I was actually around in the year 2000 for Bush v Gore, and we thought we would never see anything like that again. And just to remind people what happened then.

CNN has just learned that the United States Supreme Court has reached a decision.

By a one vote. The justices ruled in favor of former Texas Governor George W Bush over then Vice President Al Gore.

Let me get to the bottom line here. The judgment of the Supreme Court of Florida is reversed. That was the judgment that had allowed these broad counts to go forward.

And, you know, here's an interesting thing about that. When this court ruled, they stopped the recounts down in Florida, they said that crucial electoral votes should go to George Bush. Al Gore just said, okay, okay.

Let there be no doubt. While I strongly disagree with the court's decision, I accept it. I accept the finality of this outcome, which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity of the people and the strength of our democracy, I offer my concession.

You know, nobody stormed the Capitol. He just accepted that decision. And that decision. You know, half the country thought that decision was wrong. Half the country thought it was right.

I know that many of my supporters are disappointed. I am too. But our disappointment must be overcome by our love of country.

Make no mistake, this election was stolen from you, from me, from the country.

And, you know, contrast that to what happened just back in 2020 when we had the seeds of, you know, the terrible violence at the U.S. Capitol that is leading to this action right now.

Because you'll never take back our country with weakness. You have to show strength, and you have to be strong.

Is that something that weighs on the justices then as they make this decision because Trump is involved?

Two things about that question there. The justices really don't want these kinds of cases on their doorstep, just basically any kind of election question. But you're exactly right to ask about Donald Trump's involvement. Donald Trump cases are especially fraught for these justices, even for his three appointees Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. They don't really like to have them up there. They already feel like everyone believes every vote they cast is Partizan. So this just complicates things more. And I just want to say, you know, we had talked a little bit about, what was going on in the year 2000 during Bush v Gore. You know, back then we never spoke as we do now about the future of democracy. And that's really what we we think the future of democracy nationwide is at risk. And voters, regular people, may not be able to control the outcome of who becomes the next president. And how the justices rule in this case will be a step toward maybe ensuring confidence in the system, or maybe not ensuring confidence in the system. And one last thing I will say is that everyone can listen in on Thursday, February 8th to the arguments because they'll be live streamed from the court.

And we love that. Joan. Thank you.

Thank you.

One thing is a production of CNN Audio. This episode was produced by Paola Ortiz and me, David Rind. Our senior producer is Faiz Jamil. Our supervising producer is Greg Peppers. Matt Dempsey is our production manager. Dan Dzula is our technical director. And Steve, Lickteig, is the executive producer of CNN Audio. We get support from Haley Thomas, Alex Manaseri, Robert Mathers, John Dianora, Annie Steinhart, Jamus Andrest, Nicole Pesaru, and Lisa Namerow. Special thanks to Katie Hinman. And one more thing. If you're enjoying the show, let us know. You can leave a rating and review on a podcast. Find me on social media. Always love to hear from you. We'll be back next week. Talk to you then.