As arguments begin this morning in a historic challenge to Donald Trump's eligibility to appear on the ballot, they will push the Supreme Court into a strident election that threatens to abruptly end the former president's campaign for a second term.
Not since the court decided Bush v. Gore after the 2000 election have the nine justices been asked to delve into a case so intertwined with an ongoing presidential election. Although the appeal ostensibly concerns the Colorado vote, both sides acknowledge that this year's decision will have national implications.
The court scheduled 80 minutes for arguments to begin shortly after 10 a.m. Eastern Time, but justices regularly exceed the set time on more mundane matters. They are more likely to pressure lawyers who argue before them for hours.
Here it is to be attentive:
Trump's election fight takes high court into uncharted territory: Many of the legal theories raised in the insurrection dispute are new to the Supreme Court. Although the Fourteenth Amendment was ratified in 1868, the court had never before faced a claim based on the insurrection clause. While the stakes for Trump are enormous, they are also huge for the Supreme Court. The court's approval ratings have fallen to historic lows and much of the country will likely be enraged by the decision in the election case.
Will judges look for ways to rule without saying whether Trump was an insurrectionist? The six Republican and independent voters who sued Trump filled court papers with harrowing images of the attack on the US Capitol and surprising language about the chaos that unfolded that day. But if the justices seem to focus primarily on more technical points, that may be a good sign for Trump.
“Many judges will look for a way out of this,” said Michael Gerhardt, a law professor at the University of North Carolina at Chapel Hill. “The court will be reluctant to rule on the merits of this because that would put it in the middle of the election.”
The interaction between John Roberts and Elena Kagan may be key: Although he is one of the least talkative on the bench, it is always important to watch Chief Justice John Roberts during arguments. Roberts, concerned about the court's reputation, will likely seek to resolve the politically fraught case in a narrow way that can bring together the court's six conservatives and three liberals. Roberts' questions could indicate what he believes is the best path to achieving that result. Thursday's arguments may offer a glimpse of the appetite within the court's liberal wing – Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – to find a compromise with Roberts. The chief justice and Kagan, nominated in 2010 by President Barack Obama, have found ways to work together in recent years.
CNN's Marshall Cohen contributed to this report.
