In one of the most important political and election law cases in at least two decades, the U.S. Supreme Court — before a packed courtroom audience — 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 to be 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.
First, what does Section 3 of the 14th Amendment say?
"No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability."
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.
Who has the power?
Listen to the oral arguments presented before the justices Thursday in the player above. Video by PBS NewsHour
Much of the arguments focused on whether Colorado — and states in general — have the constitutional authority to enforce Section 3.
Trump's attorney argued that the states have no role. He relied heavily on a circuit court decision from 1869, 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.
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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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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. What can the secretary do?, he asked Trump's attorney.
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. He 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.
Courtroom sketch by Bill Hennessy for PBS NewsHour
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 the Colorado lawyer 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.