The NPR Politics Podcast - Will Trump Be On The Ballot? SCOTUS Weighs In

Episode Date: February 8, 2024

The Supreme Court heard arguments today about whether or not Colorado can keep former President Donald Trump off the ballot for his actions on January 6th. We discuss what it was like in the courtroom and if it can tell us anything about how they may decide the case. This episode: Senior White House correspondent Tamara Keith, national justice correspondent Carrie Johnson, and political correspondent Susan Davis.This podcast was produced by Jeongyoon Han, Casey Morell & Kelli Wessinger. Our editor is Erica Morrison. Our executive producer is Muthoni Muturi. Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey, this is Tom Atchity. I'm currently on Booth Island in the middle of Antarctica on a National Geographic expedition. We are surrounded by all sorts of penguins and wildlife, and it is absolutely beautiful out here, but I've still taken some time to listen to the NPR Politics podcast. This podcast was recorded at time stamp 153 p.m. Eastern Time on Thursday, February 8th. Things may have changed by the time you're hearing this, but hopefully I'll still be in Antarctica. Here's the show. I hope he has a windbreaker. I feel like our listeners are just one-upping each other every day this week.

It's becoming a little bit more extreme with all of these outdoor activities. Jealousy. Jealousy. Yes. But we're here, indoors, in a studio, with real news to discuss. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House.

I'm Keri Johnson. I cover the Justice Department. And I'm Tamara Keith. I cover the White House. I'm Keri Johnson. I cover the Justice Department. And I'm Susan Davis. I cover politics. The Supreme Court today heard a case with major implications for the 2024 election. The question whether the state of Colorado can bar former President Donald Trump from the state's primary ballot. Based on the Constitution's 14th Amendment that has a provision saying insurrectionists are not allowed to hold office. Carrie, we are going to be leaning on you heavily here to understand the argument. So let us start at the beginning. What is the background of this case?

This case was brought by six Colorado voters. The lead plaintiff is Norma Anderson, who made history as the first woman to lead the state House and the state Senate in Colorado. She's now 91 years old. And when I talked to her, she talked about, you know, members of her family being part of the greatest generation and helping to liberate parts of Europe during World War II. And she viewed this lawsuit as her way to protect democracy. And you said she looks a little bit like Bea Arthur from the Golden Girls. Well, she's very tall and slender and very much a striking figure in the Supreme Court building today, I thought. And so this case is about the 14th Amendment and whether Trump should be allowed to be on the ballot.

Sometimes you come out of oral arguments at the Supreme Court and know exactly what direction they are likely to go, what offamp they plan to take, how narrow they plan to be. How about this time? Well, from the lengthy and somewhat challenging questions to the lawyer for the Colorado voters, Jason Murray, my takeaway is, will this actually be a unanimous decision in favor of Donald Trump or maybe an eight to one decision? This was a very, very good day for Donald Trump in court and a very good day for Donald Trump in court and a very bad day for the Colorado voters trying to block him from the primary ballot there. Carrie, can you tell us a little bit more about Jason Murray, the lawyer for the Colorado voters, and what his argument was? This is Jason Murray. He was making his first argument before the

Supreme Court today. Boy, oh boy, what a debut, right? And he had been a clerk for Justice Elena Kagan on the Supreme Court. And earlier in his life, he had been a clerk for now Justice Neil Gorsuch on the Tenth Circuit. So he knew at least a couple of the justices. His main point was that Donald Trump disqualified himself through his actions on and around January 6th. He said Trump tried to disenfranchise 80 million American voters. The Constitution doesn't let him do that. He says that even though this provision of the 14th Amendment really hasn't been used in 150 or 155 years, that it remains relevant to this day. And this is the moment it was made for. Carrie, can you talk about Trump's lawyer?

Trump's lawyer is Jonathan Mitchell. He's no stranger to the court. He was a clerk for the late Justice Antonin Scalia. And Mitchell may be best known to our podcast listeners because he helped devise a law in Texas that allowed people to pursue civil lawsuits against folks who helped people get abortions in the state of Texas and seek monetary penalties against them. And so Jonathan Mitchell has been in the conservative legal community for a long time, even though he's not that old a guy. He did have questions today from the justices, including some skeptical questions, but he had a much easier

time of things. His main arguments were that if you look at the language in Section 3 of the 14th Amendment passed after the Civil War to keep Confederates out of office. The president of the United States is not an officer of the United States. And this is kind of a wild thing to think about. But parts of this provision specify who it applies to. And the president and the vice president are not on that list. And so he's telling the justices to just look at the language and go from there. I'm glad you brought this up, Carrie, because I would listen to oral arguments and they seem to chew on this point for a long time. And I have to admit, it was kind of a dense, it felt kind of complicated.

It is kind of complicated and it's kind of weird, right? I mean, as a common sense person, you'd is one of the first presidents of the United States in history to not have held any elected office before that period of time when he was elected. And so the language in this provision may apply to every president except George Washington and Donald Trump. And so that is bizarre, but that's the way a lot of the justices seem to come down. And they relied in part, I don't want to go too deep into the weeds here, they relied on part in a case from 1869, where the then Chief Justice of the Supreme Court was basically hearing a case in Virginia, not in his capacity as a justice of the Supreme Court, but it was just a year after this provision was ratified. And he kind of issued a ruling that comported with this reasoning. And so Brett Kavanaugh and a couple of the other justices who fashioned themselves as more conservative and more textualist seemed to bite that argument. Another key argument seemed to be this idea of whether

one individual state should be able to have this kind of power over a national or federal office. You know, and the interesting thing about that, too, is that was not just advanced by the conservative justices. Justice Lana Kagan asked that question of Jason Murray, her former law clerk, at least three times that I heard. Why should a single state have the ability to make this determination not only for their own citizens, but for the rest of the nation? And Amy Coney Barrett, one of the Trump appointees, basically said, is it the case that any first mover state could get in and make this argument and then run the board for all the rest of the United States? The other thing that came up was something from the Chief Justice,

John Roberts, who basically said, isn't this going to be a tit for tat thing? And what do we do with that? That's a mess. Insurrection is a broad term. And if there's some debate about it, I suppose that will go into the decision. And then eventually what we would be deciding whether there was an insurrection when one president did something as opposed to when somebody else did something else. And what do we do? Do we wait until near the time of counting the ballots and sort of go through which states are valid and which states aren't? I believe it was Justice Alito who made the point that in the tit for tat that in impeachments, there was 100 years between the impeachment of Johnson and Bill Clinton. But since Bill Clinton, we have had now three

impeachment processes that do these things expedite the partisan nature of it? Often more is learned from the questions that are asked by the justices than the answers that are given by the lawyers making their case. So what did you learn from the questions being asked by the justices? Well, the first question of all was from Clarence Thomas, who talked about something that the justices could use as an off-ramp. And he basically said, isn't it the case that Congress would need to act here to pass some kind of legislation in order to develop a process for disqualifying somebody? That was one of the main off-ramps some legal analysts had suggested these justices might take to avoid getting into the whole issue and the fact pattern of whether or not Donald Trump led an insurrection on January 6, 2021. And they seem to mostly want to stay away from that mess of issues surrounding what actually happened on January 6, 2021, and instead focus on a couple of different technicalities. And those were these. First, that issue of whether the

President of the United States is an officer of the United States or whether Donald Trump should be considered one. And the second was this issue of whether this part of the Constitution is self-executing. And let me just shorthand that to tell people, it just means, can any old buddy do this on their own? Or does Congress need to pass a law in order to tell the federal government or states how to approach this question of disqualification? Like what the process would be. What the process would look like and what it should look like. All right. We are going to take a quick break. And when we come back, more on this very important case.

And we're back. And Carrie Johnson, what else stood out to you from these oral arguments today that give you a sense of where the justices might be? You know, a lot of these arguments, which went on for two hours, longer than two hours, focused on some of these technical points, the history dating back to the 1860s. And then all of a sudden, toward the end of the argument, in comes Justice Brett Kavanaugh asking kind of the question that all of us have had about democracy and the will of the voters. And here's what he had to say. Your position has the effect of disenfranchising voters to a significant degree. And should that be something, does that come in when we think about should we read Section 3 this way or read it that way? What about the background principle, if you agree, of democracy? So what about democracy, Carrie?

Well, Jason Murray, the lawyer for these Colorado voters, basically said that Donald Trump didn't recognize the will of the voters in the last election and tried to overturn it. And the Constitution is in place to prevent him from doing the same thing all over again. I think that this is one of the most fascinating things, not just about this case, but the broader what's at stake here. I mean, this comes up a lot. When should the courts or when should Congress do something like an impeachment process or throwing out a member of Congress? When do you intervene between the ballot and the voters? Do voters ultimately decide or when in extraordinary circumstances does some element of government have to act to get in their way. My listening to the justices today, it did seem across the board that there is this sort of hesitation or reluctance to be aggressively weighing in in American elections.

That there is a fundamental constitutional principle is that these are ultimately decisions that should be up to the people. Yeah, the problem is that 24 years ago, the Supreme Court stopped the Florida recount and basically handed the election to George W. Bush. And that is Bush v. Gore, year 2000, and public perception of the court hasn't recovered from that. No, and I think that that's important to consider in this case, too, is that no matter how this court decides, it's going to inflame some element of this country. And there's always a part of this country that thinks the court's ruling is not legitimate. I mean, this goes back to many other reasons besides Bush v. Corr. You can also talk about the blockade on the Supreme Court of Merrick Garland and how it changed the way that liberals view the court. But yeah, I think ultimately, no matter what they

decide, even a 9-0 unanimous decision in the eyes of many Americans will be an illegitimate decision that does not align with their view of democracy. Well, let me just say that this may not be the only bite at the apple that is Donald Trump that the Supreme Court has this term. You know that he has until early next week to take the issue of whether he is immune from federal criminal prosecution to the justices. And they're going to have to confront whether they want to hear that now, whether they want to let stay in place a lower court ruling that says he is not immune from prosecution and he should go to trial potentially as soon as the summer in Washington, D.C. Well, and the former president has spent a lot of time at various courthouses,

making courthouses into campaign rallies, if you will, or at least an arm of his campaign. This time, he stayed in Florida at his Mar-a-Lago resort and held court with reporters there after the arguments were completed. Well, I'm a believer in our country and I'm a believer in the Supreme Court. I listened today and I thought our arguments were very, very strong. It was a good day for Donald Trump all around in a year where he hasn't had all that many good days in court. Carrie, do you have a sense of what the options are for how this might come down? You've talked about it potentially being 8-1 or 9-0, but on what? Like what off-ramp are they going to take? Presumably they are not going to decide whether or not Donald Trump committed an insurrection on January 6th. this argument that the president is not an officer of the United States, and others seem quite interested in the idea that Congress would need to do something before anyone could be disqualified.

And so those are a couple of the options at the court's disposal. One of the challenging factors here is the court may want to move quickly before the Super Tuesday primaries are coming up. And they also may want to move decisively. So try to fashion some result that would not lead another case like this to come back up to the court in either November after the election or in January around the certification. And how they quite get there, I'm not entirely sure at this point, but I did hear an overwhelming tilt trying to make this issue go away. And now you know what my nightmares will be about, which is the Supreme Court throwing this to Congress to find a resolution. And again, like not to be predictive, but you can say with a fair amount of certainty that if they were to throw this to Congress, Congress is not going to be predictive, but you can say with a fair amount of certainty that if they were to throw this to Congress, Congress is not going to be able to pass any law affecting any element of this prior

to the 2024 election. Certainly not when Donald Trump is the likely nominee and he will be running against Joe Biden. And I should say that the solution to some extent has been in Congress's hands all along. Sure. It is part of the 14th Amendment. It is part of this exact provision that if two-thirds of each chamber of Congress decides to vote for amnesty or to waive this disqualification, it goes away, poof, right away. So Congress has the power was always impeachment for these kind of offenses. And the Senate had their chance in the impeachment of Donald Trump for his actions on January 6th, and they did not take it. So this is the court might not want to solve this problem, but Congress has proven they don't want to solve it either. So, Carrie, did I hear you right that you think that normally the Supreme Court has a decision release calendar that involves May and June? Is it your sense that this could happen much more quickly, that this is not on the regular clock? I think each of these justices understands the political calendar.

They took this case pretty quickly. They expedited it with full briefing and this hearing today. And they know that millions of people are going to the polls in early March, and they need to answer this question decisively so people don't get disenfranchised by throwing away their vote on somebody who's later disqualified, potentially. Right. For more coverage of today's oral arguments and the latest developments in former President Trump's other cases, there's another NPR podcast you can check out. It is called Trump's Trials. Listen as NPR journalists and legal experts weigh in on the courtroom drama, big developments in those cases, testimony, and what it all means for democracy. That's Trump's Trials from NPR, hosted by our old friend Scott Detrow. And that is it for today's pod. I'm Tamara Keith. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Tamara Keith. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And I'm Susan Davis. I cover politics. And thank you for listening to the NPR Politics Podcast.