Today the Supreme Court heard oral arguments in Trump v. Anderson, which will determine whether Section 3 of the Fourteenth Amendment disqualifies former President Donald Trump from once again becoming President. You can read my preview of the case here, but as a reminder:
Section 3 disqualifies various fomer officials, including "officers... who have sworn an oath to support the Constitution," from taking up certain positions, including any “office… under the United States.” Dozens of lawsuits have been brought arguing that Trump’s behavior on January 6th constitutes an insurrection that disqualifies him from the office of the presidency. In December, the Colorado Supreme Court became the first to agree and took him off the ballot. After today’s argument, the consensus was that the Court will overturn the Colorado Supreme Court’s decision and reinstate Trump on the ballot—maybe even unanimously.
Many commentators had something to say about attorney Jonathan Mitchell’s argument style in his defense of Trump. Known for being excessively interested in legal technicalities, Mitchell candidly acknowledged the weaknesses in his arguments and repeatedly rejected softball questions when he thought them ideologically impure or inconsistent with his broader argument. Maybe this was strategic: admitting weakness can sometimes be a sign of strength and make the things you won’t concede seem more genuine. Or maybe this is just a result of his academic background. In any event, his analytical, level-headed nature and candidness led at least one news outlet to describe him as decidedly “un-Trumpy.”
Mitchell started by summarizing two points made in the briefs: first, the presidency is probably not an office covered by Section 3, meaning it doesn’t apply to people who want to be president, and it really doesn’t apply to former presidents. After getting pushback from Justice Ketanji Brown Jackson about why he was focusing on the latter argument, even though she presumably (and surprisingly!) thought the former argument was more persuasive, Mitchell clarified that he hadn’t abandoned that argument, it just was a lot tougher.
Justice Sonia Sotomayor, however, seemed to think it was gamesmanship. She called it a “gerrymandered rule,” since President Trump is (apart from George Washington and maybe John Adams) the only former president the rule would apply to. Every other former president, as well as current president Joe Biden, has taken an oath to support the Constitution in some other capacity (senator, congressman, etc.), making them subject to potential disqualification. Trump, however, has only ever sworn an oath as president. So under Mitchell's reading, Trump is the only former president to benefit. Section 3 for thee, but not for me.
There’s another problem with the “Presidency” is not an “officer” nor an “office under the United States” argument: nobody can explain why the Framers would have wanted it. It’s one thing to suggest that the Framers of the Fourteenth Amendment were concerned with former insurrectionists taking office, but not the nation’s highest office. That alone is kind of... odd. But it's a whole 'nother level of weirdness to suggest that even if the Framers were concerned about former officials-turned-insurrectionists becoming President, they weren't concerned about former presidents-turned-insurrectionists becoming President. Why the carve out? The best Mitchell could do was suggest it was a sort of drafting error that arose in the context of compromise. But even Justice Antonin Scalia said judges should interpret the text reasonably, not strictly. And this seems kind of unreasonable.
Next, Mitchell argued that the Colorado Supreme Court erroneously removed Trump from the ballot rather than simply deeming him disqualified from office. By its text, Section 3 disqualifies insurrectionists from office, but not from appearing on the ballot. And states cannot preemptively take disqualified insurrectionists off of the ballot, he said, without running afoul of U.S. Term Limits v. Thornton. In that case, the Supreme Court held that states cannot impose qualifications for office above and beyond those in the Constitution. According to Mitchell, taking a candidate off the ballot would go beyond the qualifications set in the Constitution because it conflicts with Congress’s ability to remove the disqualification by 2/3 vote.
FWIW, I don’t buy this argument. Taking someone off of the ballot may move up Congress’s timeline for deciding whether to remove the disqualification, but I think it’s a stretch to say it changes the qualification itself.
What's more: IMHO this is the type of argument a judge would normally laugh out of court. “X person is disqualified from office and yet we have to allow them on the ballot? Get outta town!” And what's more, it would be very difficult ot get a disqualified but elected insurrectionist out of office. No judge is going to want to remove someone who was actually elected (and heaven knows Congress doesn't have the strength to do it)! People already feel disenfranchised by the idea of having a potential candidate taken off the ballot, let alone having an elected politician taken out of office. But I've seen crazier arguments win the day.
As has become custom, Justice Clarence Thomas jumped in with the first question and asked Mitchell to elaborate on his argument that Section 3 is not “self-executing” and requires some sort of implementing legislation from Congress before it can be applied. (As an aside, Justice Thomas wrote a dissent in Thornton which said that taking someone off of the ballot is not the same as establishing a new qualification, so long as the person can still be written in). Admitting that first principles would usually counsel in favor of finding constitutional provisions self-executing, Mitchell largely relied on Griffin’s Case to support this argument. That was a non-binding case in which Justice Salmon P. Chase, riding circuit, ruled that Section 3 cannot be applied unless and until Congress passes implementing legislation. Chase’s reasoning was largely focused on the consequences of a ruling to the contrary. And indeed, Chase later seemed to change his mind when he wrote about the eligibility of Jefferson Davis for president.
Justices Amy Coney Barrett and Elena Kagan observed a tension in this argument: how can Congress authorize states to do something that Mitchell is otherwise arguing is prohibited by Thorton?
Justice Barrett also asked why Mitchell relied on things like precedent and practical considerations rather than making a more limited argument that the something about the Fourteenth Amendment and Constitution itself limits states’ ability to disqualify federal officers? In another moment of candor, Mitchell replied that such an argument would only get him out of state court, and not federal court. He’s therefore forced to rely on a combination of Griffin’s Case and other extra-constitutional things to argue that no court can implement Section 3.
A few other examples of Mitchell rejecting life rafts:
1) Justice Jackson offered a potential reason why the Fourteenth Amendment might disqualify people from all offices except the presidency: she reads the history as showing the Framers were mostly concerned about former insurrectionists taking office in the South in state or congressional elections; perhaps they thought it less likely that one would make it to the Presidency or that such an outcome would have a more limited effect than congressman in the South directly undercutting Reconstruction. Mitchell did not accept this rationale and instead countered that the history showed that some framers were, in fact, worried about people like Jefferson Davis becoming president.
2) Justice Samuel Alito asked whether the Colorado Supreme Court’s decision might lead to Colorado deciding the presidency for everyone. Mitchell said just the opposite: it might create a patchwork of contradictory decisions based on different factual findings at the state level (I thought federalism was good?). Presumably he said this because if he lost, he didn't want Colorado's outcome to dicate the Trump's fate in the rest of the country.
3) Mitchell rejected Justice Brett Kavanaugh’s suggestion that Griffin’s Case was probative of the original meaning of Section 3, saying he didn’t want to accept that because Chase later changed his mind.
4) Justice Barrett asked whether Trump’s due process rights were violated. Mitchell says his team didn’t develop that argument at the Supreme Court because it wouldn’t do much for his client and would only be limited to the facts of the Colorado case. In other words, it might have been a winner, but it wouldn't have gotten him very far.
Though the justices couldn't seem to agree with each other or with Mitchell, it was apparent that they were at least grasping for a reason to rule in his favor. Oral argument went much worse for Anderson’s counsel, Jason Murray. Early on, the justices asked for any historical examples of states disqualifying federal officials under Section 3. When Murray couldn’t point to any, he noted that elections were conducted differently back in the day. This caused Justice Thomas push back and say that there was a “plethora” of former Confederates in public life after the Civil War, and it would therefore seem like there would be many instances of states disqualifying them if they were allowed to.
Later, Murray noted there hadn’t been a reason to try to disqualify anyone until now, since 1) Congress granted amnesty in 1876, and 2) no one else’s behavior since has risen to this level. That might well be true, but it seemed to leave the justices unsatisfied.
The justices had additional concerns: Justice Kagan worried that ruling in Murray's favor might allow states like Colorado to decide the election for the entire country. Chief Justice Roberts noted that the Fourteenth Amendment was about limiting state power, not giving states power. And both the Chief and Justice Alito expressed concerns about political parties weaponizing Section 3 against their opponents on shaky grounds. This caused Colorado Solicitor General Shannon Stevenson to try to give everyone a dose of stoicism in her few minutes of argument. Don't panic, she said. If the Court were to deem Trump ineligible, our institutions are up to the task of tackling the fallout.
No telling when we'll get a decision, but likely soon. I just hope that whatever rationale it uses, the Court continues applying a strong presumption towards judicial review and self-executing constitutional provisions. Because if we don't have judges to enforce our rights against overreaching government, our rights don't mean much.
In other big legal news: the D.C. CIrcuit ruled that Trump is not immune for crimes he allegedly committed while trying to challenge the election results. You can read the opinion here.
My favorite thing of the week: the justices talk just like us.