Marissa Zupancic is JURIST’s Washington DC Correspondent, a JURIST Senior Editor, and a 3L at the University of Pittsburgh School of Law. She’s stationed in Washington during her Semester in DC. 

On Thursday, Februrary 8, I sat in the courtroom of the Supreme Court of the United States on assignment for JURIST to hear oral arguments in Trump v. Anderson, an appeal brought by former President Donald Trump to determine if states can remove him from their election ballots under the Constitution’s 14th Amendment, Section 3, known as the “insurrection clause.”

@JURISTnews DC Correspondent and @PittLaw 3L Marissa Zupancic is at #SCOTUS today for the oral arguments on #Trump's ballot eligibility. She'll be keeping us updated with any developments. pic.twitter.com/d8I9vNyy3x

— JURIST (@JURISTnews) February 8, 2024

In a JURIST explainer I published in the days leading up to the oral arguments, I examined Trump’s submissions, the Colorado voters’ submissions, efforts in other states to remove him from the ballot, as well as the unprecedented nature of the case. This case was to be the first time that the “insurrection clause” would be scrutinized by the nation’s highest court since it was passed after the Civil War.

Inside the court

Arriving at the Supreme Court with my JURIST press pass, Capitol Police allowed me to walk up the steps of the Supreme Court to proceed to security at a side entrance. You are not allowed to bring any food, water, or liquids into the building, so several fellow journalists had to leave the security line to throw away protein bars and water. After that, I found a place in the very small, cramped press office to wait to head up to the courtroom. The arguments and questions were supposed to last for one hour and twenty minutes total. There was another metal detector the press section was required to go through to enter the courtroom. All we were allowed to bring into the courtroom were pens, pencils, our press passes (out of view in our pockets), a notebook, and the materials on the case provided by the court. Security shuffled through my notebook, and I was then escorted into my assigned seat, G-17, in the press section.

The press section is on the left side of the courtroom, tucked behind gates, columns and curtains. When the Public Information Office informed me I had an assigned seat to be in the courtroom, they warned that some of the press section had “obstructed” views. My view (as well as that of many others in the press section) was completely obstructed. The gate was covered in an acorn motif, also blocking most of my view of the public area where people who had waited in line to try to get a seat were sat. Security walked down the aisles and was stationed at the front of the public area. Additionally, my entire view of the bench and legal counsel was blocked. A few of the reserved seats in the press area were empty, so some of the journalists asked if people could move down, with the answer being a stern “no.” While waiting for the arguments to start, there was tangible anxiety and anticipation across the press section. Because we were not allowed to have any electronic devices, or even a book, with us, I spent most of the time looking at all the details around the courtroom. Every inch of the room is ornate, from the curtain holders that have carved scales of justice on them, to the ceiling that has intricate 3-D flower designs. The curtains were drawn, and the room was overall very dim.

Lots of shushing ensued before a loud beep informed everyone that the justices were now arriving to take their seats. Everyone in the room stood until the justices were sat. There was a general announcement to everyone in the courtroom to let security know if you saw anything suspicious. Then, the justices read a summarized version of two opinions they were announcing for the day, which included Department of Agriculture Rural Development Rural Housing Service v. Kirtz and Murray v. UBS Securities, LLC.

Due to my obstructed view, I had to try my best to tell which justice was speaking at any given moment and made notes to compare to the audio recording later on. At some moments, if I leaned all the way back in my chair, craned my neck, and closed one eye, I could make out about one-third of what I believe was Justice Samuel Alito’s face.

Trump’s arguments

Legal counsel for Trump, Jonathan Mitchell, began oral arguments with a short statement. He listed numerous “independent” reasons why the court should reverse the Colorado Supreme Court’s removal of Trump from its ballot. In particular, he submitted that the ruling effectively disenfranchised millions of voters who want to vote for the former president. Justice Clarence Thomas then asked the first question, a bit of a surprise given his history of not asking many questions to parties (from 2006 to 2016, Thomas did not ask a single question during oral arguments). Thomas asked whether Section 3 is “self-executing,” meaning whether states have the authority to enforce Section 3 without prior authorization from Congress. Mitchell said that it is not self-executing, and that Congress must pass legislation allowing states to enforce Section 3 first.

Over the course of his arguments, Mitchell repeatedly referred to Griffin’s Case, a federal circuit case from 1869 that concerned the “insurrection clause.” In that case, former Chief Justice Salmon Chase held that Congress had to pass legislation before the clause could be enforced. Notably, however, Justice Sonia Sotomayor pushed back on Mitchell’s reliance on Griffin’s, pointing out that it was not precedential and that Chase later said that Congress did not need to pass a law for enforcement of Section 3.

Sotomayor also asked about states removing some candidates from their ballots if they did not meet other constitutional requirements, such as if they did not meet the minimum age of 35 or not did not have US citizenship at birth, both requirements appearing in Article II of the Constitution that have been established as self-executing.

Justice Neil Gorsuch asked Mitchell to explain the “gap” in the terms “officer” and “officer of the United States” as they appear in the Constitution, which laid the foundation for one of Mitchell’s core arguments: that under Section 3, the office of the president is not explicitly listed as being required to follow its requirements, so the presidency is exempt. Mitchell explained that “officers of the United States,” as the phrase appears in Section 3, only refers to those appointed, not elected officials like the president.

Towards the end of Mitchell’s allotted time, he submitted that while the events of January 6 were “shameful, criminal, [and] violent,” January 6 was merely a “riot”, not an “insurrection” for the purposes of Section 3.

Colorado voters’ arguments

The court next turned to Jason Murray, legal counsel for the group of Colorado voters. Murray also began with a brief statement, where he stressed that Trump is seeking “a special exemption only for himself.” He rebutted Mitchell’s arguments that the insurrection clause is not self-executing, explaining that questions of age, citizenship, term limits, and insurrection are all within the domain of states to enforce freely without congressional action. He also argued that it is important for Trump to be removed from the ballot so that people’s votes are not “wasted” if Trump wins the general election and Congress subsequently finds that Trump is ineligible to hold office due to his actions on January 6.

Once again, Justice Thomas began the questioning. Thomas looked to the history of the 14th Amendment, where he asked for modern examples of how this amendment applies beyond its previous application to former Confederates in the aftermath of the Civil War. Murray emphasized that this question has not come up in modern history, so there were not any contemporaneous examples of states ruling candidates ineligible under the “insurrection clause.”

A few of the justices seemed extremely skeptical of Murray’s arguments, with Justice Brett Kavanaugh even going so far as to say that “there’s no historical evidence to support [that] kind of theory of Section 3.”

Sotomayor asked why states should have the power to remove candidates from their ballots, to which Murray explained that Article II gives states the power to “appoint their own electors as they see fit.”

Justice Gorsuch began a steady line of questioning, garnering some laughs (some nervous) about the intensity of some of the questions. Gorsuch repeatedly redirected Murray’s answers, where he stated things like “I’m not going to ask again,” and “Please don’t use other hypotheticals.” Chief Justice John Roberts even stated that Murray was “avoiding the question” at one point. This was an ongoing theme during the oral argument, which caused much disbelief and shocked facial expressions across the press box.

The justices inquired about the possibility that removing Trump from some state ballots would disenfranchise many voters from being able to cast their vote for Trump. Murray responded to this point by stating, “President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance.”

Finally, Justice Ketanji Brown Jackson also showed some skepticism about Murray’s arguments, emphasizing that because the office of the president is not explicitly included in the list of offices that fall under Section 3’s requirements, why should the court resolve the ambiguous language “against democracy” by removing a candidate from the ballot?

At the close of Murray’s time, about five reporters left the press box. Shannon Stevenson, the Solicitor General for Denver, Colorado, had 10 minutes to give arguments for the Colorado Secretary of State. Notably, she stressed that a feature of US democracy is to exclude some candidates on different ballots on different states because each state has the ability to make its own laws and choices under the US system of government.

End of arguments

Finally, Mitchell gave his closing arguments, where he argued that states have changed the criteria necessary under Section 3, now requiring a candidate to prove their eligibility for office before actually holding office and/or winning the election. At the end of Mitchell’s final point Chief Justice Roberts announced that the case was submitted and the Supreme Court session ended.

After this, everyone in the press box returned to the press room to gather our things, turn on our phones, and head outside to cover the events happening on the steps of the court. What were supposed to be arguments running a bit under an hour and a half turned into a marathon of over two hours.

There were journalists in the courtroom from a variety of publications, including Voice of America, Gray TV (JURIST 2023-24 Journalist in Residence Jon Decker), Fox News, CNN, The Wall Street Journal, and some Spanish-language publications, just to name a few. For many, it was their first time covering an oral argument at the Supreme Court. Being there as a law student reporter was a unique experience, given that most people in the room were there in their career capacities. But having a background in law allowed me to have a better understanding of the arguments the lawyers made, especially following the intricacies of law invoked by counsel arguing for different meanings of the various words at issue, like “officer” and “insurrection.”

It was incredible to have this courtroom experience as a law student and see history being made before my eyes. That day was my first day inside the Supreme Court ever, and it happened to come on the day of my first courtroom assignment as a JURIST DC correspondent, covering a major national event!