Like so much of former President Donald Trump's political career, arguing before the Supreme Court on Thursday about his eligibility to run for president is a unique and unprecedented event.
The current case is centered on whether Trump is ineligible for the presidency under Section 3 of the 14th Amendment, and it has the potential to have far-reaching ramifications for the 2024 presidential election.
I listened to the Supreme Court oral argument in real time, as I do at least once a week when the Court is in session. To make sure I wasn't missing anything, I also had some real-time help from New York lawyer William H. Cooper, Esq., because if there was ever a morning I didn't want even the most minute legal nuance to escape me, this was it.
Cooper set the tone for the day by first reminding me "Part of what has people somewhat off-balance who are following all the Trump legal news is that there's so much of it, seemingly every day. But there truly is no other instance in American history where a sitting or former president has faced a court decision as to whether they were eligible to be president."
The weight and severity, for lack of a better term, of the oral argument reinforced the weight of the moment. It's not rare for the justices of this incarnation of the Supreme Court to play out intellectual exercises in their questioning. Sometimes their back-and-forth with counsel is borderline playful—the stuff of "Do you really think that nine angels can dance on the head of this legal pin," stuff.
It wasn't today.
The questioning was, as Willy Loman would have observed, "Quiet, fine, and serious," evincing nine justices who, for the sake of the democracy, would probably have rather been doing anything else today.
As Cooper told me, "There's a certain weight being part of what is an undeniably historical legal moment. Like today, when it also happens to sit at the intersection of whether a person can or can't be president of the United States, no jurist is going to want to say something that could be perceived as a misstep."
From a legal perspective, this case is not about whether Colorado voters were correct in arguing in a lawsuit filed last year that Trump's actions during the Jan. 6, 2021, Capitol attack make him an insurrectionist, because, after a five-day trial, a judge ruled Trump actually
had committed insurrection.
What's happening at the Supreme Court is all about whether a former president who participated in an insurrection was a current "officer of the United States." The Colorado trial judge decided that Trump was not a current officer of the United States and did not remove him from the ballot.
But then the Colorado Supreme Court, in a razor-thin 4-3 December decision, overturned and excluded Trump from the ballot, which is why we are where we are today.
I think that Justice Elena Kagan's questioning of Trump's counsel, Jonathan F. Mitchell, was the most cogent and compelling moment of the morning. It tore at any idea that the Constitution, through its own force, could preempt or prevent any state, such as Colorado, from disqualifying someone, such as Trump, from the ballot.
This was just rough to listen to. Trump's counsel was relying on what he interpreted that case law would permit Congress to do and not do, but with every minute of the discussion that went by, other justices piled on. We have all experienced getting deeper and deeper into an argument and it feels like we're starting a logical avalanche that is about to bury us. That's what it felt like to me as a close listener and Supreme Court follower—I wonder how it felt to counsel.
But if there was a scariest moment—and there most certainly was—it was when Justice Sonia Sotomayor jumped in with a bone-chilling question to Mitchell. Sotomayor asked whether Trump's counsel was making an argument to lay the foundation for a president to take a third term of office. Because, to Sotomayor, me, and many others listening, it sure sounded like he was.
If there needed to be a final gotcha moment, it came when Justice Ketanji Brown Jackson questioned Mitchell. Jackson remarked that in their original brief to the Supreme Court, they conceded that the events of Jan. 6 constituted and insurrection, then, in their reply brief, they argued that they didn't. When Mitchell tried to argue that they didn't concede this in the original brief, it was short and very unsweet, as his argument was entirely incredible.
What I'm left with is that this is one of those scary types of oral arguments; the kind where you leave thinking that's it's a slam dunk for one side, then you scroll through your feed a few days or weeks or months later and the Court did the exact opposite.
I can't see this being the case here—I just can't envision the Supreme Court overturning the Colorado Supreme Court. But, as Cooper reminded me, "Part of being a smart lawyer is not to be surprised." That may be the end result of today.
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief strategy officer forAmplify. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Newsweek, Fast Company, Fortune, Forbes, CBS News, CNBC, USA Today, ESPN, Today's Esquire, TechCrunch, The Hill, BuzzFeed, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal,Law.com,The Boston Globe, and many other leading publications across the globe.
The views expressed in this article are the writer's own.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
