My Quick Take On The Supreme Court Oral Arguments In Trump Eligibility Case Is Not Good

First, I invite you to read my article from this morning about what to look for in the oral arguments. In it I suggested that if the arguments focused on the core question of whether Trump engaged in an insurrection that would be bad for Trump. If it focused on other things, that would be good for Trump.

Well, let’s review how this went down, because it was bad for us and great for Trump. About the only vote I think is fairly certain on our side is Sotomayor, and I am not even absolutely certain about her. I think Jackson is going to vote for Trump on this. This could be as bad as 8–1 in favor of Trump. I have a hard time getting up to 7–2, and I can’t see 6–3 at all.

The justices effectively spent zero time on the core question of whether Trump engaged in an insurrection. They don’t seem to care. Instead, their concerns are:

1. “Uniformity” is probably the word of the day from this hearing. The justices fear a hodgepodge of rulings among states on a national election where one state effectively disenfranchises the voters in another state. Conservative adherence to federalism is, to be kind, selective. The notion that this uniformity problem could be resolved by the Supreme Court definitely stating Trump engaged in an insurrection and is thereby barred from the Presidency was never even discussed.

2. The court seems strongly inclined to find that 14.3 is not self executing (unique among all the provisions of the 14th Amendment) and that Section 3 (alone among the 14th Amendment’s provisions) requires enacting legislation by Congress. In short they seem to be taking the position of Chief Justice Chase in “Griffin’s case.” That Chase later repudiated his own position seems to have bounced right off of them.

3. The court also seems perversely sympathetic to the office v. officers argument that the Presidency is uniquely not touched by the the bar in 14.3. Justice Jackson was among those in this category and she repeatedly emphasized that 14.3 does not list the President. That the legislative history is clear the drafters of 14.3 intended it to include the Presidency was given no apparent weight.

4. In my view the Anderson litigants erred in trying to claim Colorado could do this under its laws, combined with the electors clause, giving Colorado the broad power to exclude Trump. That electors clause argument was met with across the board skepticism.

Making this a sort of states rights case about Colorado, I would argue, is the wrong approach. The right approach is simply that Colorado was doing what 14.3 required it to do. That, contrary to any states rights approach, the state had no choice in this matter. Colorado could no more put Trump on the ballot than it could deny its citizens the equal protection of the law in violation of Section 1 of the 14th. In short, this case should have been about what Colorado could not do under our Constitution, rather than what it had the discretion to do.

At one point Justice Roberts argued that those seeking to bar Trump were “at war” with the history of the 14th Amendment because, “the whole point of the 14th Amendment was to restrict state power.”

I agree. Which is why the argument should have been that 14th Amendment did restrict Colorado’s power. That the 14th Amendment forbids Colorado from having Trump on the ballot.

A justice would then likely ask, “are you saying that no state can have Trump on the ballot?” The answer would be, “absolutely, your honor, and that is what this court should rule. This court should find that Trump engaged in an insurrection and is barred from the ballot everywhere.” Boom, uniformity achieved.

The Anderson litigants should have tried to force the court to address, and base its decision on, the substantive question of whether Trump engaged in an insurrection. We are likely to now get a ruling that will deny the American people a decision on that crucial question.

This will punt the decision to Congress when it comes time to certify the electoral college vote. The stage is set for a Constitutional crisis this coming December and January.