Three lawyers are set to take the lectern at Thursday’s historic Supreme Court hearing over Donald Trump’s presidential eligibility. Arguing for the former president is Jonathan Mitchell, the ex-Texas solicitor general best known for hatching the state’s anti-abortion bounty hunter law. Arguing for the Colorado voters who brought the case is Jason Murray, who has the notable distinction of formerly clerking for both Justice Elena Kagan and Neil Gorsuch when the latter was a federal appeals court judge.
The lawyer-clerk connections provide a notable backdrop to the hearing, not only because Kagan and the Republican-appointed Gorsuch are ideologically opposed, but also due to how Gorsuch and the conservative judges Mitchell clerked for have surfaced in the dispute. Mitchell clerked for the late Antonin Scalia and former federal appeals court judge J. Michael Luttig. Luttig, of course, is well-known to MSNBC viewers and readers, including for pressing the 14th Amendment case against Trump. In Luttig’s amicus brief in this case advocating for Trump’s disqualification, he cites the words of both Gorsuch and Scalia in support of that position.
And to close the loop on those judges mentioned above, at oral argument involving Mitchell’s anti-abortion law in 2021, Kagan appeared to refer indirectly to him when she lamented the fact that “some geniuses came up with a way to evade the commands of” precedent and the “broader principle that states are not to nullify federal constitutional rights.” Any exchanges between them at this argument should be interesting.
If the voters had their way, it would just be those two lawyers making their cases in the Washington courtroom. But Colorado Solicitor General Shannon Stevenson will also appear, on behalf of Colorado Secretary of State Jena Griswold. The voters didn’t want to split argument time, but the justices granted the secretary of state’s motion to divide time and lengthen the hearing. It’s set for 80 minutes total — with Mitchell given 40 minutes, 30 for Murray and 10 for Stevenson. But even typical Supreme Court arguments can go well over the allotted time, and this one should be no exception, so those seeming restrictions might not make a huge difference as to how the hearing actually proceeds.
And strikingly for a case of this magnitude, Mitchell is the only one of the three to have argued before the justices previously, though all three are experienced lawyers. To see how long it goes — and more importantly, what happens during it — you can stream the audio from the court’s website. Arguments should be televised as well, but the justices have long resisted that and other transparency measures, so if you aren’t in the courtroom, you’re out of luck in that regard. Yet the visually inclined can still tune in to MSNBC for live coverage — and look out for a transcript of the hearing posted right here on the Deadline: Legal Blog if you want to read the justices’ words for yourself. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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