Supreme Court hears historic case on removing Trump from ballot

The atmosphere in the Supreme Court on Thursday was "much more tepid" when compared to the oral arguments held for Bush v. Gore in 2000, according to CNN senior Supreme Court analyst Joan Biskupic, who was in the courtroom for hearings during both cases.

She noted that the justices today did not talk to each other as they commonly do during oral arguments.

"In this case, you could feel that like they didn't have to make the case to each other," she said. "There were enough of them who came into this argument ready to reject the Colorado voters' position, so the tension was just much lower."

During the Bush v. Gore hearing, Biskupic said "there was a lot more tension among the justices, a lot of interrupting, a lot of rapid fire questions."

In comments to reporters on Thursday after the conclusion of the Supreme Court hearing, former President Donald Trump claimed that “there were no guns, there were no anything” at the Capitol on January 6, 2021. 

Facts First: Trump’s claim is false. People who illegally entered Capitol grounds during the January 6 riot were armed with guns and a wide variety of other weapons, including stun guns, knives, batons, baseball bats and chemical sprays. The Justice Department said in an official update in January 2024 that 116 of the people who have been charged in connection to the riot “have been charged with entering a restricted area with a dangerous or deadly weapon.”

We may never get a complete inventory of the concealed weapons the rioters possessed on January 6, since nearly all of the rioters were able to leave the Capitol without being detained and searched, so it is possible that most rioters were unarmed. But it was always apparent from video footage that there were a variety of unconcealed weapons in the crowd that day — and it has been proven in court that at least some of the people who illegally entered Capitol grounds on January 6 were armed with guns.

In its 2023 ruling disqualifying Trump from the Colorado ballot under the Constitution’s ban on insurrectionists holding office, the Colorado Supreme Court wrote: “Contrary to President Trump’s assertion that no evidence in the record showed that the mob was armed with deadly weapons or that it attacked law enforcement officers in a manner consistent with a violent insurrection, the district court found — and millions of people saw on live television, recordings of which were introduced into evidence in this case — that the mob was armed with a wide array of weapons.”

Derek Muller, an election law expert at Notre Dame Law School who filed a neutral brief that offered analysis of key legal questions, said after the hearing that the justices are likely to put Donald Trump back on the ballot in Colorado. 

“The justices seemed concerned that one state could affect the entire presidential election process, and that there needed to be some guidance from Congress before such an extraordinary measure could be taken,” Muller said. “The Court seemed inclined to let the political process play out.”

Muller – who hasn’t taken a position on Trump’s eligibility under the 14th Amendment – pointed out that several justices expressed unease with states implementing the ban without some sort of guidance from Congress. 

“It's not surprising to see the justices express discomfort with the proposition that the United States Supreme Court should wade into a factual and legal mire like this,” Muller said. “But it was somewhat surprising that there seemed to be consensus around the theory that states could not do this without congressional legislation." 

Former President Donald Trump delivered remarks Thursday after the Supreme Court heard oral arguments in the case on his presidential ballot eligibility.

Trump said he believes his status as the frontrunner for the Republican nomination should merit consideration by the Supreme Court when weighing Colorado’s decision to remove him from the ballot, while overstating his performance in polls against President Biden in a head-to-head rematch. 

“An argument that is very important is the fact that you're leading in every race. You're leading in every state. You're leading in the country against both Republican and Democrat and Biden. You're leading the country by a lot, and, can you take the person that's leading everywhere and say, ‘Hey, we're not gonna let you run.’ You know, I think that's pretty tough to do, but I'm leaving it up to the Supreme Court,” he said.

Trump claimed the case is "more election interference by the Democrats."

Jason Murray, the attorney representing a group of Colorado voters challenging Donald Trump’s eligibility for the 2024 ballot at the Supreme Court, finished his arguments after nearly an hour.

Here's they key moment to know about:

Justices focused on ballot eligibility over January 6: Murray argued the January 6, 2021, attack on the US Capitol was unprecedented and rose to the level of an insurrection, but many of the justices focused on issues in this case that would take them away from the facts of the attack, such as how and if states determine ballot eligibility.

Much of the questioning of Trump's attorney Jonathan Mitchell also revolved around similar sweeping questions of state power and how the 14th Amendment could allow for Colorado to remove Trump from the 2024 ballot.  

History of 14th amendment: Chief Justice John Roberts suggested one of the main arguments Murray raised was “at war” with the history of the 14th Amendment’s insurrectionist ban at center in the case.

“The whole point of the 14th Amendment was to restrict state power,” Roberts said. “On the other hand, it augmented federal power.”

Justices were concerned about a single state's power: Several justices signaled their skepticism over whether a single state should have the power to decide what candidates can be on the ballot for a national election. “Why should a single state have the ability to make this determination not only for their own citizens but also for the nation,” Justice Elena Kagan asked, saying that “seems quite extraordinary.”

Justice Amy Coney Barrett echoed the concerns, adding: “It just doesn’t seem like a state call.”

In response, Murray argued that each state would still have the ability to determine what appears on their own ballots, despite what officials in another state might decide.

CNN senior Supreme Court analyst Joan Biskupic said she began to "feel that the tide was already going in a certain direction" while she listened to oral arguments presented to the high court in the case of former President Donald Trump's ballot eligibility.

Biskupic, who was inside the courtroom Thursday during the arguments, said justices were "soft" in their interactions with Trump’s lawyer Jonathan Mitchell when "compared to where they've been aggressively on any advocate who stands up there."

Biskupic noted that the attorney representing the Colorado voters "got so many questions about how impractical this was and how could it possibly be what the framers of the 14th Amendment wanted."

The arguments ended after roughly two hours.

Justices signaled Thursday they may back former President Donald Trump and fend off a blockbuster challenge to his eligibility to appear on Colorado’s ballot.

Jason Murray, a lawyer for the anti-Trump challengers, defended the fairness of the Denver-based disqualification trial that led to Trump’s eventual removal from the ballot, and the current SCOTUS case.

Murray was responding to a question from Justice Brett Kavanaugh, whom, like the other justices, has signaled some skepticism in the theory that the process in Colorado was the right way to enforce the 14th Amendment’s “insurrectionist ban.” Trump has claimed that his due-process rights were grossly violated in the Colorado proceedings.

Kavanaugh read from the dissent of Colorado Supreme Court Justice Carlos Samour, a Democratic appointee, who wrote perhaps the most searing opinion disagreeing with the decision. He said: "I have been involved in the justice system for thirty-three years now, and what took place here doesn't resemble anything I've seen in a courtroom.”

That dissent was reflecting on the highly expedited trial proceedings that were held to adjudicate an extremely complicated constitutional clause that had barely been touched since 1919. The lawsuit was filed in September, the weeklong trial began in October, and the trial judge issued her decision in November.

The Colorado Supreme Court’s majority – by a 4-3 decision – also believed the process was fair.

Shannon Stevenson, Colorado’s top appellate attorney, has been allotted 10 minutes to argue on behalf of Colorado Secretary of State Jena Griswold.  

Griswold, a Democrat, requested to take part in the arguments to discuss how election officials in Colorado specifically handled the ballot in that state.  

Stevenson, who earned her law degree from Duke University, was named the state’s solicitor general last year. She previously clerked for Judge David Ebel on the 10th US Circuit Court of Appeals.