9 months ago
When the Supreme Court holds arguments Thursday on Donald Trump’s eligibility to be president, the justices won’t be hearing from members of Washington, D.C.’s elite circle of Supreme Court specialists.
Instead, the three lawyers presenting the case are all from outside the beltway and have little experience at the high court’s lectern.
Arguing for Trump will be Jonathan Mitchell, a conservative lawyer who is the only one of the three who has ever argued before the Supreme Court. He’s done so five times — and during his most recent case, his legal position so exasperated Justice Elena Kagan that she obliquely and sarcastically referred to him as a genius.
Arguing against Trump will be Jason Murray, a Denver lawyer whose firm describes its mission as holding powerful people accountable. Late last year, Murray successfully persuaded Colorado’s top court to declare Trump ineligible to run in that state due to the Constitution’s insurrection clause — a bombshell decision that paved the way for the Supreme Court to take up the question.
There also will be a third lawyer taking a brief turn at the lectern on Thursday: Shannon Stevenson, the solicitor general of Colorado. Stevenson will speak on behalf of the Colorado secretary of state, who is responsible for enforcing the state’s election laws.
Here’s what to know about the three advocates who will present what may be the most important election case since Bush v. Gore.
Jonathan Mitchell
A ‘very aggressive litigator’
Mitchell, 47, is a prominent conservative lawyer and legal theorist who has worked as the Texas solicitor general, as a law professor and as a private litigator running his own law firm.
Before the Trump case, Mitchell was best known — particularly to the justices — as the architect of a restrictive Texas abortion law that preceded the court’s reversal of Roe v. Wade.
The ingenuity of the law, which bans abortions after about six weeks of pregnancy, allows private citizens to enforce the ban by suing abortion providers or anyone else who facilitates an abortion. This novel enforcement mechanism doesn’t require state officials to enforce it, allowing Texas to implement an abortion ban even before the Supreme Court overturned Roe.
The private-enforcement mechanism displeased some of the justices. During oral argument in a challenge to the Texas case, Kagan skewered Mitchell, though not by name, remarking that, “after, oh, these many years, some geniuses came up with a way to evade” the court’s authority.
Mitchell has repeatedly described the goal of his legal practice as undercutting the notion that the Supreme Court is the ultimate interpreter of the Constitution, a belief known as “judicial supremacy.”
In a written dissent in the Texas case, Justice Sonia Sotomayor called the Texas law “a breathtaking act of defiance — of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.”
Mitchell's affront to Supreme Court authority may play a role in the Trump ballot case: One of the arguments that Mitchell has advanced in his briefs is that only Congress, not courts, can kick a candidate off the ballot under the insurrection clause.
Mitchell declined to comment for this story. Chris Hilton, who worked alongside Mitchell when they represented co-defendants in several cases while Hilton was at the Texas attorney general’s office and Mitchell was in private practice, described Mitchell as a “very aggressive litigator.”
“He has a strong conviction for what he thinks the law is, for what he thinks the right thing to do in a case is, and he is unafraid to go down that road,” Hilton said.
Hilton, now a partner at Stone Hilton, added: “You almost can’t talk fast enough to keep up with how fast his brain is going at times.”
Mitchell attended the University of Chicago Law School, then worked as a law clerk for Judge J. Michael Luttig of the 4th Circuit U.S. Court Appeals and for the late Justice Antonin Scalia, Mitchell’s legal role model. During law school, Mitchell maintained a website called “Scalia Shrine,” according to the New Yorker, in which he posted opinions and quotes from his favorite justice.
Mitchell has said his experience working for Scalia made him more disillusioned about the institution of the court. “I didn't have as much faith in the Supreme Court after the clerkship as I did before the clerkship,” he told NPR. “The decision-making was more politicized and more results-oriented than I would have expected.”
As for Luttig, now a prominent conservative legal scholar, he has emerged as one of the foremost voices advancing the argument that the 14th Amendment does, in fact, disqualify Trump from seeking a second term.
Jason Murray
'Not Highfalutin'
Murray, 38, will argue on behalf of Colorado voters who are challenging Trump’s eligibility. He’ll be making his Supreme Court debut in one of the most closely watched cases the court has heard in years.
The majority of Murray’s legal experience has been as a trial lawyer handling commercial litigation for the law firm Bartlit Beck LLP, which is based in Chicago and Denver. Last year, he left that practice to form a boutique firm, Olson Grimsley Kawanabe Hinchcliff & Murray LLC, which seeks “to hold the powerful to account.” Murray declined to comment for this story.
Murray, a graduate of Harvard Law School, is not without experience with the justices, having clerked for two of them, each on a different side of the ideological spectrum. He clerked for Justice Neil Gorsuch during his stint on 10th Circuit U.S. Court Appeals and clerked for Kagan at the Supreme Court.
In a 2017 op-ed in the Washington Post, Murray argued for then-nominee Gorsuch’s confirmation, saying that despite the differences in their politics, his two former bosses shared a common “zeal” for the rule of law.
“For both,” he wrote, “the goal was to reach the correct legal result, rather than advance any political party's agenda.”
Despite Murray’s resume, he doesn’t wear his pedigree on his sleeve, said Eric Olson, who co-founded the boutique firm with Murray and helped argue the Trump case before the Colorado Supreme Court. “I’m from Eastern Kentucky. We would say he’s not highfalutin,” Olson said.
Though Thursday will be Murray’s first turn before the court, Olson said Murray is the right choice to argue the case. “The reason why he’s arguing is that our team, after talking through various options, agreed he was the best person for the job, in part because he knows the hardest material in the case the best,” Olson said, pointing to Murray’s expertise in the historical record around the ratification and implementation of the 14th Amendment.
“He has a remarkable ability to engage with people who approach a problem from a different perspective in a way that doesn’t require him to prove you wrong in order to win the case,” Olson added.
Shannon Stevenson
Defending Colorado's Authority
Though Mitchell and Murray will be the principal lawyers arguing on Thursday, the court also granted some argument time to Stevenson, who will argue on behalf of Colorado Secretary of State Jena Griswold.
Stevenson, who became the state’s solicitor general early last year, filed a brief in the case arguing that Colorado has the authority to exclude a candidate from its ballot if that candidate is deemed ineligible by the state’s courts. That is exactly what the Colorado Supreme Court found in this case, and Stevenson is urging the justices to affirm that decision.
Stevenson may be asked to respond to specific parts of Trump's argument that relate to how Colorado executed the process for evaluating his eligibility for the ballot.
Prior to her work in government, Stevenson was a partner at law firm Davis Graham & Stubbs LLP and chair of the firm’s advocacy department. There, she focused on the energy, natural resources, and construction sectors, with particular expertise in appellate proceedings.
She attended law school at Duke University and later clerked for Judge David M. Ebel on the 10th Circuit U.S. Court of Appeals.
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