We have talked repeatedly about this claim that Trump is disqualified under Section 3 of the Fourteenth Amendment. Probably the best post to review on the subject is the one where we talked about the Supreme Court taking up the issue, here. In any case, on Thursday we heard the oral arguments on the subject and now we are waiting to hear the Supreme Court’s decision. We expect it to be what we would call ‘court fast.’ That is fast for a court, but not fast in the minds of most people. We wouldn’t be surprised if an opinion issued within a week. But we would guess the opinion would come out closer to a month from now.
What will they decide? We listened to the argument and were pleasantly surprised to leave it thinking that we were looking at least eight votes to overturn and it might even be unanimous.
Which is terrible news for democracy or something, according to the Colorado Secretary of State:
The Colorado Secretary of State is literally on the verge of tears after SCOTUS seems poised to strike down the Colorado ruling
— johnny maga (@_johnnymaga) February 9, 2024
“The drafters understood that an insurrectionist operating from within can destroy our democracy from within”
She needs to be impeached & removed pic.twitter.com/xkh4P2yF7O
We won’t make the ‘we are a republic not a democracy’ type of argument. We know people have been harping on the difference between a republic and a democracy at least as far back as Federalist #10, but we think it is correct to call America a ‘constitutional representative democracy,’ which really is the same thing people are talking about when they say America is a Republic.
But she is the one literally telling people that they shouldn’t be able to vote for the candidate of their choice, and as we pointed out previously, the Colorado Supreme Court had to engage in deception to make their argument, violating Donald Trump’s First Amendment Rights in order to violate everyone’s right to vote. The Colorado Secretary of State is basically arguing that we have to destroy democracy in order to save it. Literally even if Trump gets 99% of the popular vote and 100% of the electoral college, according to the Colorado Supreme Court and its secretary of state, Trump cannot be president.
Look, the reality is that our constitution is at times anti-democratic. Just about every part of the first eight amendments to the Constitution are anti-democratic to one degree or another. For instance, if more than half of Americans, more than half of Congress and the President of the United States all decided to make Mormonism the official religion of America, requiring all Americans to pay money directly to that church, they can’t get their way because of the Establishment Clause of the First Amendment. There is some debate over what that clause means in some cases, but there is no debate that it is at least designed to prevent that exact thing from happening and short of a constitutional amendment, or some other extreme event, it can’t happen in America. Likewise, if a majority of the American people wanted the sentence for jaywalking to be for a person to be hung, drawn and quartered, like what happened at the end of Braveheart, that wouldn’t be allowed because it would constitute cruel and unusual punishment in violation of the Eighth Amendment. This is an anti-democratic element of our Constitution and most people have no objection to it.
It is even fair to say that a degree of non-democracy is necessary for democracy, paradoxically enough. For instance, a country that doesn’t allow for freedom of expression is not a democracy of any kind. After all, how can you have a free and fair election if people can’t speak freely about the election? But the upshot of that is that even if the majority of the American people want to ban certain types of expression based on its viewpoint, such as hate speech—they can’t get their way without a constitutional amendment (or a serious change in Supreme Court personnel).
But keeping insurrectionists out of power doesn’t even necessarily relate to the protection of democracy. America was literally founded by insurrectionists. And the founders of the Fourteenth Amendment had not turned against the entire concept of rebellion by that time. Of course, they had just finished a bitter Civil War, which those founders would have considered an invalid cause for rebellion. But those founders also still believed in the American revolution. The very name of the Republican Party was a reference to Jefferson’s Republican party, which eventually morphed in the Democratic Party we know today and it invoked Jefferson precisely because they saw the Declaration of Independence as an anti-slavery document. And the same founders not only supported our rebellion of 1776, but numerous slave revolts. The simple fact is that these founders didn’t think all rebellion as inherently wrong. Their view was nuanced, supporting some rebellions and opposing others. But they also believed that the government had a right to put rebellions down, and they wanted to make sure the people who stirred up trouble in the past would be excluded—not because they feared they would overthrow the government but because they believed they would steer it in the wrong direction. And, crucially, they left open a back door so they could still allow good rebels into power. The notion that Section 3 is about preserving democracy really just ignores what it actually says or the founders view of rebellion.
In any case, we thought we would also take a moment to dig a little deeper into the oral argument the other day.
We said toward the beginning of this peice that we think that the Supreme Court will rule that Trump will be allowed to be on the ballot. Now, there are two difficult things in making this kind of prediction. First, we are guessing from questions what a justice is thinking, and sometimes that can really lead you astray. Sometimes a justice will essentially make an argument with a question. For instance, famously during the oral argument in Citizens United, Justice Scalia asked then-solicitor-general Elena Kagan if the law she was defending would mean that certain books are banned. He was clearly forcing her to say ‘yes,’ to build the argument that the law was unconstitutional. But also sometimes a justice will ask about a particular issue because he or she is struggling with it. In other words, the justice is asking ‘what do you say to this argument?’ because they are not sure themselves what they would say to it, and if the lawyer gives a good answer, the justice might adopt that answer when writing an opinion.
The second thing to understand is that there are many issues in this case and if the Colorado Supreme Court gets any of them wrong, then they get reversed and Trump gets back on the ballot. As you know by now, Section 3 of the Fourteenth Amendment says the following:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
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Disqualifying Trump requires the courts to answer all of the following questions all as a ‘yes:’
- Is the president covered by the section?
- Is what happened on January 6, 2021 an insurrection?
- Can a person be considered a participant in an insurrection if their only role is alleged incitement?
- Did Trump incite the insurrection?
- Can a state enforce this rule?
- Can it do so without Congressional authorization?
- If a person is disqualified from holding office under Section 3, is removing him or her from the ballot an appropriate remedy?
- Did Trump get a fair chance to defend himself?
- Did the Colorado courts rely on admissible evidence?
- Did the Colorado apply the correct burden of proof before rendering its decision?
We might be forgetting an issue or two but the point is that if the United States Supreme Court answers ‘no’ to any of those questions, Trump wins. So, if you hear a justice sound like they might side with Colorado on one issue, there are still a lot of reasons why the decision below might be reversed—so you can’t assume they are on Colorado’s side overall just because they think they might have gotten one thing right.
And to set the table a little more, we would share the audio from that oral argument:
You have to jump to roughly the 7:50 mark to get to the beginning of the argument.
We will also say that Trump’s lawyer was particularly excellent. Look, this author wants the Trump side to win this, so you might reasonably suspect we are biased, but we think he was the most able lawyer of the three we heard from. We took plenty of notes and have the transcript in front of us, and we have some thoughts on the argument. And with all the caveats we just gave you, we do think that we have at least eight votes to put Trump back on the ballot.
Trump’s lawyer, Jonathan Mitchell, focused primarily on two issues. The first is the claim that the Presidency is not even covered by Section 3 at all. Let’s review that language again:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Mitchell’s argument was pretty brilliant on all points, frankly picking up on subtleties we had previously missed. The language of the amendment basically talks about 1) which insurrectionists are covered, 2) which positions they are disqualified from holding and 3) Congress’ power to lift that disqualification. So first, you have the language detailing what positions in government certain insurrectionists are disqualified from holding:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States or under any State …
... if they are a qualifying insurrectionist. In other words, it is not all insurrectionists, but only certain ones, which is what the next part focuses on:
… Who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States…
Mitchell focuses on that second part. There is no question that Trump was never a member of Congress, and never held any position in state government. Thus the question is whether a president is considered an ‘officer of the United States.’ If he isn’t then he never took the relevant oath and therefore isn’t covered by this language, even if he committed insurrection.
The first thing to note is that, frankly, it would be strange to specifically mention members of Congress and not specifically mention the president.
Second, the other times the Constitution talks about officers of the United States they are clearly not referring to the president.
Now, to understand this argument you have to understand something about legal writing. In normal creative writing, you are encouraged to use different synonyms when you talk about the same thing, to avoid repetition. So, you might write:
Bo and Luke quickly got into their car and hit the gas pedal. The rear wheels of their Dodge Charger spun momentarily in the mud before they made purchase and the automobile sped off. With the law on their tail, they quickly found a bit of dirt they could use as a ramp and made the vehicle jump clean over the lake.
Hey, it ain’t Shakepeare but it follows the rule, calling the General Lee a ‘car,’ a ‘Dodge Charger,’ an ‘automobile’ and a ‘vehicle’ all in one paragraph, so we aren’t just repeating one term like ‘car.’
But in legal writing the opposite rule applies. If you are talking about the same thing, you use the same words every time. If you use the same word or phrase, you are implying that you are talking about the same thing. If you use a different word or phrase, you are implying that you mean something different.
And what Mitchell and most of the Supreme Court justices were saying was that every other time when the Constitution uses the term ‘Officers of the United States,’ they don’t mean the president. Therefore, when it is used in Section 3, it is not referring to the President, either.
Thus, for instance this is what the Constitution says about appointments, in Article II, Section 2, Paragraph 2:
He [The President] … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law[.]
In context, it’s plain that officers of the United States doesn’t include the president, because the president doesn’t appoint himself and he doesn’t need the advice and consent of the Senate to do it.
And as a quick aside, while the Constitution often refers to the president as a ‘he,’ this has not been seen as making sex a requirement to be president because in the law very often women are men—especially if we go back in history. We admit that is a very strange thing to write down in the context of our times, but it is true. One would see criminal statutes that would say something like ‘murder shall be when one man kills another man with malice aforethought,’ and it would be no defense to say ‘but your honor, the defendant is a woman!’ We can’t think of the last time we have seen a modern statute do this, but if you go back 200 years, it was done all the time. So, since the founders didn’t specifically say that the president had to be man, the Constitution has not been interpreted saying that being a man is a qualification to be president.
Otherwise, Adam Schiff might be disqualified (which we admit is not entirely a bad thing).
Turning back to the Supreme Court argument, one can also look at Article II, Section 3, which says (in relevant part):
… he [The President] shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
We thought we would needlessly include the ‘take care’ clause to remind everyone that failing to enforce the law at the border is a violation of Biden’s oath of office.
Still, to return to the disqualification issue, plainly in context, the term ‘Officers of the United States’ couldn’t possibly be referring to the president himself.
Article II, Section 4 also uses that term:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
In this case, the founders of the original Constitution didn’t think that (civil) ‘Officers of the United States’ included the president and vice president, and therefore felt the need to specifically mention them.
So, the argument goes that since other parts of the Constitution uses that term in ways that clearly exclude the president (and vice president), then when Section 3 of the Fourteenth Amendment says that
… Who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States…
That language is meant to exclude the president and the vice president. Additionally, in the past, in other contexts, the Supreme Court has treated the same language the same way. Furthermore, Mitchell mentioned that at one point an earlier draft specifically included the president and that language was cut.
Mitchell also makes the argument that this also applies to the portion that deals with what positions they are disqualified from holding. Again, that language says
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States or under any State …
First, it is bizarre that the amendment would specifically mention that electors for president are covered without mentioning that the president is also covered. But also the way the language of the Constitution uses the term ‘office’ coupled with ‘under the United States’ also seems to exclude the Presidency. For instance, the Constitution prevents congresscritters from doing double duty in the executive branch as follows:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
That would be from Article I, Section 7 and plainly none of that includes the presidency. So the argument is the presidency is not an office of the United States, as that phrase is used in the Constitution.
One of the most outspoken advocates on the Supreme Court for this position was, of all people, Justice Jackson. She is presently the sole Biden appointee and we were pleasantly surprised to hear her speak so strongly on this theory, repeatedly offering historical arguments for why the founders of the Fourteenth Amendment wouldn’t apply this to the president. But we think one of her most solid points was to ask this question to Jason Murray, who represented the party that wanted to disqualify Trump: ‘And so, if there's an ambiguity, why would we construe it to -- as Justice Kavanaugh pointed out -- against democracy?’
That’s a little muddled but that’s common for transcripts. We tend to think that what we say out loud is extremely well organized, but if you get a chance to read your own words in a transcript, most people would be pretty shocked to see how disjoined it is. But we understood what she was trying to say, in context, and we think it would go something more like this: ‘if the Constitution is ambiguous, why should we construe its language against Democracy?’ In short, she is saying, when in doubt, interpret the Constitution so that voters have more power, not less. And tellingly, Murray never had a very good explanation as to why they shouldn’t do that.
As we said early on, you have to be careful in trying to predict how a justice will vote based on his or her question or comments, but we put Jackson in the ‘we are dang pretty sure she will vote in Trump’s favor’ column, which we frankly didn’t have on our bingo card.
The second major argument that Mitchell focused on in oral argument involved part of Section 3 that we admittedly didn’t pay much attention to. Toward the end of Section 3 of the Fourteenth Amendment, it says that ‘But Congress may by a vote of two-thirds of each House, remove such disability.’ It is the only requirement or disqualification that has that kind of wrinkle in it.
Overall, there are multiple requirements and disqualifications for the presidency. For instance, Article I, Section 1, Paragraph 5 says:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
And the Twenty-Second Amendment says
No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once.
That would be a disqualification from holding the office. But the key difference is that none of these requirements or disqualifications can be waived. For instance if Salman Rushdie wanted to be president, his foreign-born status would forever preclude him from doing so (contrary to what Cenk Uygur thinks) and that will never change short of a constitutional amendment. The same can be said for the age requirement—if a candidate is not going to be at least 35 years old on the day he or she would be sworn in, they can’t be president. Ditto for the term limit. And so, in each case, the states are justified in saying ‘Cenk Uygur, you can’t even appear on the ballot. The same goes for you, Barack Obama and George W. Bush.’
But in the case of the Fourteenth Amendment’s disqualification, there could easily be a situation where an alleged insurrectionist wins in November and then before he or she is sworn in, in January, Congress holds the necessary votes in order to lift the disability and let him or her take office. Therefore, it is wrong for any state to take a candidate off the ballot for insurrection, because in theory even if the candidate was an insurrectionist, Congress could lift that disability. Of course, since it requires a two-thirds vote in both houses of Congress, we don’t think that is very likely to happen for Trump, but courts don’t get into the game of guessing how Congress might vote on a topic.
The downside of this approach is that it doesn’t settle the question of Trump’s qualification. Instead, it basically kicks the can down the road to when and if Trump wins. Of course, if he is loses all of this is moot, anyway, but suppose he wins enough votes in the electoral college? Can various officials in the Biden administration refuse to recognize his election because they believe he is supposedly an insurrectionist? Can Kamala Harris refuse to certify the results? If he is sworn in, can people sue to say that everything Trump does is illegal because he can’t hold office due to being a rebel (with or without a cause)? Jokes aside, winning on this ground might lead us to a constitutional crisis down the road.
There were a few other things worth noting in the oral argument. First, there was a bit of confusion early on because Mitchell constantly refers to ‘Term Limits.’ As he eventually clarifies, he isn’t talking about the Twenty-Second Amendment’s term limits, but to a case called US Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). That case involved the attempt of a state to place a term limit on their own congresscritters. If any non-lawyers were confused, we have sympathy—it was a genuinely confusing thing for outsiders. On the other hand, we have much less sympathy for any lawyers or Supreme Court justices who experienced more than momentary confusion because it became very clear very quickly he was referring to a case which had been extensively cited in Mitchell’s brief.
Seriously, this exchange between Sotomayor and Mitchell is just dumb:
JUSTICE SOTOMAYOR: So you want us to say -- I'm wondering why the Term Limits qualification is important to you.
MR. MITCHELL: Because it --
JUSTICE SOTOMAYOR: Are you setting up so that if some president runs for a third term, that a state can't disqualify him from the ballot?
Except he wasn’t talking about the term limit for the president, but rather the case called Term Limits, Sotomayor. Instead, she thinks he has a nefarious purpose in setting up Trump for a third term in 2028 or thereafter.
More of her paranoid thinking comes in when she attacked Mitchell’s claim that Section 3 didn’t apply to Trump, anyway, saying:
JUSTICE SOTOMAYOR: A bit of a gerrymandered rule, isn't it, designed to benefit only your client?
MR. MITCHELL: I certainly wouldn't call it gerrymandered. That implies nefarious intent. We're --
JUSTICE SOTOMAYOR: Well, that you didn't make it up. I know some scholars have been discussing it. But just so we're clear, under that reading, only -- only the Petitioner is disqualified because virtually every other president except Washington --
MR. MITCHELL: Mm-hmm.
JUSTICE SOTOMAYOR: -- has taken an oath to support the Constitution, correct?
He points out that it might not have applied to the first John Adams, either, but so what of it? Most presidents hold prior office, but this is not a requirement in the Constitution. H. Ross Perot might very well have become president if he didn’t announce a withdrawal and then a re-entry into the presidential race.
Or imagine another scenario, where Donald Trump lost in 2016 to Clinton, and then presented the same challenge to the outcome of the election, made the same speech on the day of certification and then there was another riot and so on … and then he sought to run again later. Even Justice Sotomayor would have to admit that Section 3 didn’t apply to Trump under those circumstances—meaning if he had never been president at all. Trump is unique in American history that he is the first president who held no governmental office, civil or militarily, before becoming president, but the founders surely understood that we might have a president with that kind of background.
Moving on, we also found it interesting that Justice Barrett at one point started off a hypothetical by saying, ‘Okay. Let's assume that I disagree with you about the officer argument, so Section 3 covers President Trump.’ Of course, we didn’t get to see her expression as she said it but our sense, listening to the tone, is that she was pretty much saying she actually believed that Trump was covered by Section 3 and didn't buy Mitchell's argument. We could be wrong, but that is our gut feeling on that. But as we said, there are many other reasons to side with Trump.
Another interesting point is that Mitchell also argued that the Court shouldn’t focus on due process as follows:
Winning on due process doesn't really do as much for our client as the other arguments that we've made because that would be a ruling specific to this particular proceeding in the State of Colorado and would leave the door open for Colorado to continue on remand to exclude him from the ballot.
In other words, if the court found on due process grounds then the Colorado courts could say ‘okay, let’s give Trump due process’ and then still rule that Trump is disqualified. Likewise, other states could decide to hold mini trials on the topic and rule on qualification. Trump might end up facing 50 trials across the states, and maybe even a few in federal territories. A win on due process would probably drag this issue out and Trump’s lawyers don’t want that for obvious reasons.
This is also a pretty good time to teach you a bit about collateral estoppel. You hear them talk about that several times during the argument and it’s one of a number of doctrines that say, in essence, that once an issue is decided by the courts, that’s the end of it. Collateral Estoppel deals with essentially a specific question of fact. To give a simple example, imagine that John Smith was convicted of murder. Then a person calls Smith a murderer and Smith sues for defamation. Truth is a defense and so the defendant can literally get the case dismissed by showing the court competent evidence of Smith’s conviction. As far as the law is concerned, Smith murdered a person therefore he is a murderer and he doesn’t get to relitigate that fact in a future case.
So, when a number of justices discuss collateral estoppel, they are talking about the possibility that because Trump has been ruled to be a disqualified insurrectionist in Colorado, other states might then treat that issue as estopped, or essentially decided. When a state honors such a ruling from another state, that is known as mutual collateral estoppel. But sometimes a state will say that they don’t trust the rulings from another state, and therefore refuse to follow that ruling.
Both scenarios present serious problems. If multiple states follow the Colorado Supreme Court ruling, then it means effectively one state will decide for much of the union who gets to be on the ballot. Therefore, you would expect a candidate’s political opponents to find the friendliest possible jurisdiction in which to file the case. On the other hand, if each state does decide for itself, then a candidate might have to fight to be on the ballot in multiple states when he or she should be out campaigning. Furthermore, it is almost inevitable that some states will say a candidate is disqualified while others won’t, creating chaos throughout the election system.
Another thing you hear them talk about is how someone might use the same section to disqualify other candidates. They didn’t mention this, but we have already heard rumbles that they might disqualify Joe Biden because he is aiding and abetting the invasion of the United States through our southern border, or for some other reason. We think that kind of talk has gotten to the justices and made them very concerned that if they let the Colorado Supreme Court get away with it, then we might see this happen constantly, with the courts essentially deciding elections. This is part of what we think Alito was getting at when he had an exchange with Murray over the dormancy of Section 3.
Murray argued that we haven’t have any insurrection since the Civil War and that’s why the Section 3 isn’t used very much. First, we would question that assertion ourselves. For instance, there was a riot in Washington D.C. on January 20, 2017, plainly designed to prevent Trump’s inauguration. By the definition of ‘insurrection’ pushed by the Colorado Supreme Court, we don’t know how you don’t call that an insurrection. And the January 6, 2021 riot followed nearly a year of rioting inspired by the Black Lives Matter movement. Indeed, during that time we even saw the establishment of an ‘autonomous zone’ in more than one city—essentially declaring that they had seceded from this country. That would certainly be insurrection or rebellion in the minds of the founders of the Fourteenth Amendment. So, the notion that nothing like this had happened before requires a pretty selective memory.
But Alito made another point, saying:
JUSTICE ALITO: I don't know how much we can infer from the fact that we haven't seen anything like this before and therefore conclude that we're never -- we're not going to see something in the future.
From the time of the impeachment of President Johnson until the impeachment of President Clinton more than a hundred years later, there were no impeachments of presidents, and in fairly short order, over the last couple of decades, we've had three. So I don't know how much you can infer from that.
In other words, we went a long time before any president was impeached. Then even after President Andrew Johnson was impeached, we went more than a century before our next impeachment. And then in the last thirty years we suddenly had three more. And we think that implicit in that discussion was that there was a certain air of retaliation in Trump’s impeachments. But his explicit point is that you can’t predict how many times this will be repeated and we certainly think he was afraid of retaliatory uses of Section 3.
On a related note, we also heard different justices make the comment several times that the state court judges making these decisions might be elected to the bench. They seemed very concerned that a politicized judge might be inclined to rule against someone in the opposite party—which is a reasonable concern.
Finally, we thought that Justice Roberts had kind of the killer question in all of this, saying this to Murray:
Counsel, I'd like to sort of look at Justice Thomas's question sort of from the 30,000-foot level. I mean, the whole point of the Fourteenth Amendment was to restrict state power, right? States shall not abridge privilege of immunity, they won't deprive people of property without due process, they won't deny equal protection. And on the other hand, it augmented federal power under Section 5. Congress has the power to enforce it.
So wouldn't that be the last place that you'd look for authorization for the states, including [former] Confederate states, to enforce -- implicitly authorize to enforce the presidential election process? That -- that seems to be a position that is at -- at war with the whole thrust of the Fourteenth Amendment and very ahistorical.
In other words, every other part of the Fourteenth Amendment restricted state power and increased federal power. But suddenly Colorado is claiming the power to stop certain people from being elected to federal office? And that seems unlikely to be what the founders of that amendment wanted. This bolsters another major argument: That this isn’t up to the states, anyway.
In any case, those are the highlights that leapt out to this author as we listened to the analysis. We can’t be certain, but we feel confident that the Supreme Court will rule in Trump’s favor. We had previously hoped they would smack the Colorado Supreme Court around on the First Amendment, as they had in the past few years. A ruling that Trump didn’t incite the riot on January 6 would pretty much end every disqualification action and would have the additional benefit of ending several civil suits related to January 6, 2021, but we saw no evidence that the Supreme Court was going to even touch on that.
Still, ruling that the presidency is not covered by Section 3 does at least have the advantage of ending the issue in a truly final way. It’s not as good as ruling for Trump based on the First Amendment, but it’s almost as good.
But we thought it might be worth a moment to look at what some other people said. Ann Althouse, who we see as a moderate law professor, wrote the following after listening to oral argument:
I listened to the entire argument in real time, and I have some things I want to say that require the transcript, but I did think that the conservative Justices accepted the argument that the President is not covered by the text of Section 3 of the 14th Amendment. And I believe that both Kagan and Jackson were concerned about letting the states decide this matter of such great national interest. Sotomayor wasn't strong on the other side. After the beginning, she was quiet for a long time, then spoke up and sounded, I'm sorry to say, lost.
We are not sure that Barrett will side with Trump on the theory that Section 3 doesn’t apply to the president, but we do feel confident Jackson will. That likely gets us at least six justices on those grounds alone.
And we should note that the Supreme Court doesn’t have to agree on the reason why. They can simply agree on the outcome—although if you don’t have a majority consensus on a least one ground, that could create chaos in the courts below. We suspect they won’t allow that to happen.
Meanwhile, Professor Jacobson of Legal Insurrection (heh) weighed in:
Will it be 9-0 or do you think one will dissent?https://t.co/D7bJdkzB6S
— Legal Insurrection (@LegInsurrection) February 8, 2024
From the piece:
Making predictions based on oral arguments normally is risky, but I’ll take that risk: The Supreme Court will reverse not on the merits of whether Trump committed insurrection (that is not before them), but on any one of a number of issues raised that the Colorado Supreme Court exceeded it’s authority[.]
We’d respectfully disagree with Jacobson on the claim that the United States Supreme Court couldn’t rule on the incitement issue. When the issue is a person’s expression and the court has access to that expression (in this case by a video recording) so they can evaluate it for themselves, appellate courts can and do analyze it for themselves. But regardless, that isn’t the way it seems to be going, here, so our disagreement with Jacobson is academic.
By far the funniest reaction comes however from Elie Mystal (who is a man) who posted live on Twitter/X as the argument proceeded. Some of what he said on Twitter/X can’t be reprinted here without censorship, so we will provide the posts raw when we can and then quote him, with censorship, when we have to do that.
So, what's happening here is what happened in the briefs. Mitchell's case is, shockingly weak. And the conservatives are struggling to see how his arguments get them where they want to go.
— Elie Mystal (@ElieNYC) February 8, 2024
Pride goeth before the fall, of course.
We are now into what Kagan called "the officer stuff." This is *probably* what the case is going to turn on, and that's said because it's the dumbest thing.
— Elie Mystal (@ElieNYC) February 8, 2024
I can't tell is Jackson was buying the officer stuff or is baiting Mitchell to make a coherent argument about the officer stuff.
— Elie Mystal (@ElieNYC) February 8, 2024
It's hard to tell because Mitchell is doing so poorly right now.
Mitchell was actually pretty brilliant. He was, in our humble opinion, the best lawyer there.
Barrett finally asks the due process question, which i thought would be a bigger deal. The argument that Trump didn't have due process before being declared an insurrectionists.
— Elie Mystal (@ElieNYC) February 8, 2024
Mitchell: "winning on due process really doesn't do as much for our client as other arguments"
This shows you that Mystal was not a very good lawyer. Winning on due process is a very temporary victory. Mitchell is going for an argument that ends this litigation, immediately. So, either Mystal is incapable of thinking that strategically, or he is incapable of understanding the perspective of the pro-Trump side. And if your lawyer has this much trouble understanding where the other side is coming from, you have a bad lawyer.
Then Mystal starts to get mad and we have to start censoring:
Okay folks, WARNING... KBJ Is totally buying this officer s—t. Jesus effing Christ.
Please God let this NOT be f—g happening right now.
Let us drink your tears of infinite sadness, Mystal.
For those playing along at home, Thomas, and Roberts, who think the states have the right to prevent pregnant people from receiving health care and make it harder for poor people and Blacks to vote... suddenly think that the states maybe don't have a lot of power after all.
— Elie Mystal (@ElieNYC) February 8, 2024
First, let us point at laugh at him being unable to say "women."
Second, no, they don’t think the Fourteenth Amendment is about increasing the states' power, but they also, crucially, don’t think the Fourteenth Amendment says anything about abortion, so that power remains with the states.
This isn’t hard. Even the most liberal justices recognize that most subjects are reserved to states, even if they don't agree that abortion is one of them.
Me [whispering]: "Now watch the strength of Chancellor Valorum fail." pic.twitter.com/CgHe1OdZbc
— Elie Mystal (@ElieNYC) February 8, 2024
Um, you guys are the ones trying to jail your opponents and tell people that who they can and can’t choose to be president. You are the ones pushing for the creation of an Empire.
Roberts: what do you do with the plain consequences of this decision? If Colorado is upheld... a goodly number of states will say "whoever the Democratic candidate is, you're off the ballot"
— Elie Mystal (@ElieNYC) February 8, 2024
Ah yes, Republicans acting in bad faith is what the law is really about.
Then he gets potty-mouthed again:
Alito, who should know, is now talking about other bad faith things that Republicans might do.
I really hate that Republicans acting like a——s is used as A REASON for Republicans on the Court to ignore the law. It's circular and maddening.
And then he calls it:
If I was @Redistrict I'd be at the "I've seen enough" phase. Trump wins 9-0.
— Elie Mystal (@ElieNYC) February 8, 2024
But I'll stay here just to make fun of these people for another hour and a half.
Yeah, he is only pretending to have fun. We can practically smell his tears of rage:
Gorsuch is spinning out something about how a *sitting* president who committed insurrection should still be able to give orders I have no idea how this has anything to do with anything, and neither does Murray. But Gorsuch is being pissy so we all have to sit here till he's done
— Elie Mystal (@ElieNYC) February 8, 2024
Well, what Gorsuch is getting at is that theoretically the disqualification applies immediately.
Like imagine a scenario where Trump really did commit insurrection. Like if we assume the January 6 riot was an insurrection, imagine if Trump actually led the rioters saying, ‘let’s break down the doors of the capital and rush in there, guys!’ and personally helped push his way in and so on, like a general marching at the front of an army.
Well, in that scenario, Trump would have been disqualified the moment he did it. He would no longer be president, even if he said he was.
Jackson is worried about the lack of uniformity, with different states saying different candidates are ineligible. She doesn't think the framers would have designed such a thing.
— Elie Mystal (@ElieNYC) February 8, 2024
She's gone, folks. I suppose... Sotomayor could still be holding out but... this is done.
Essentially, I think he's arguing that Trump isn't an insurrectionist. But, like, whatever, it's not really what the case is turning on.
— Elie Mystal (@ElieNYC) February 8, 2024
Notice he brushes off the idea that this is an invalid invocation of Section 3. Whatever, guys, that just means that Colorado is violating the Constitution and disenfranchising millions of voters, that’s all. Whatever!
Jackson's main point is that section 3 was trying to stop "the south from rising again" in their local and senate elections, but not about presidential elections.
— Elie Mystal (@ElieNYC) February 8, 2024
Again, KBJ is all in on this "President is not an officer" thing. Big win for this conservatives here.
And then the potty mouth comes back because he is having a tantrum:
I really think this is the weakest argument available, and she's all for it. I'm so sad. "President is not the list."
SO THE F--K WHAT? Jeff Davis is clearly covered.
Jefferson Davis would be explicitly covered as a former senator.
But one reasonable question would be “why would they fail to cover the presidency? And we think the answer is pretty close to what Jackson said. She talked about how this was not the concern at the time. The President hadn’t joined the rebellion.
But we also think that an overlooked element was that the founders were just plain mad. Put yourselves in their shoes. These people, these Confederates had literally walked out of Congress and this led to an astonishingly bloody war. Even if we only count union losses—and the founders of the Fourteenth Amendment wouldn’t count anyone else—more Americans died in that war than any other until World War II. And then when all that was over, many of the very same people who walked out had the nerve to walk right back in as newly elected congressmen and expect to serve like nothing had happened. They even sent the Vice President of the Confederacy back to Congress, Alexander H. Stephens. It was a slap in the face, and you would be mad, too. They didn’t talk about the presidency because that really wasn’t the problem they were dealing with and while their language was general, we are not sure they ever imagined this language would ever apply to anyone ever again. It was pretty darn specifically tailored to wipe the former confederates out of the government as it was written.
Five stages of Elie grief
— Elie Mystal (@ElieNYC) February 8, 2024
1. Cynicism
2. Anger
3. Alcoholism
4. FURIOUS ANGER
5. Crushing depression.
Entering stage four pretty hard here.
And we are enjoying eating our popcorn watching it happen.
The case is submitted. I think it's 9-0 Trump on the ballot. I'm going to scream into the void and then write.
— Elie Mystal (@ElieNYC) February 8, 2024
Thank you all for joining me on yet another journey of "How Democracies Die" that took an unexpected detour into "Why Democrats Fail"
Democracies die because we are able to actually pick the candidate we want is one heck of a take, there, Elie (who is a man). But you do you.
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