Strict Scrutiny - SCOTUS Has Their Own Theories About Trump’s Eligibility

Episode Date: February 12, 2024

The Supreme Court heard arguments in the case about whether Section 3 of the Fourteenth Amendment disqualifies Donald Trump from appearing on the presidential ballot or holding the office of the presidency because of his role in January 6th. Melissa, Kate, and Leah break down the arguments and what it will mean if the Supreme Court reverses the Colorado Supreme Court's decision.  Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Littman. I'm Kate Shaw. And I'm Melissa Murray. And today we are going to break down the oral argument in Trump versus Anderson, the case about whether Section 3 of the 14th Amendment disqualifies Donald Trump from appearing

on the presidential ballot or from holding the office of the presidency because of his alleged role in January 6th. As a reminder, Section 3 of the 14th Amendment, 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. Textualism. Originalism. I love it. Let's start with an overall top-line impression of the oral argument. So Jonathan Mitchell,

who is representing former President Donald Trump, finished his argument, and it seemed pretty clear, at least to me, that the court was poised to reverse the Colorado Supreme Court. There were no questions, really, about whether Donald Trump had, in fact, engaged in insurrection. And the only real question seemed to be how the court was actually going to write this opinion reversing the Colorado Supreme Court. Now, to be clear, the justices did not seem to love Jonathan Mitchell's preferred theories for reversing. But more intriguingly, for our purposes, Jonathan Mitchell stubbornly resisted some of the justices' valiant attempts to steer him toward their particular favorite theories. But if Jonathan Mitchell seemed less concerned with adapting his performance to the justices, it did seem like he was performing for some audience, and maybe it was just an audience of one.

As Rewire's Amani Gandhi tweeted this morning, it seemed like Mitchell, the architect of SB8, the Texas abortion bounty hunter law, was auditioning in real time to be Donald Trump's Attorney General. And with a hat tip to Elena Kagan, all I have to say is, some genius indeed. Some genius, but he still kind of needed Elena Kagan to argue his case for him. We're getting a little bit ahead of ourselves. That's the some part. Right, exactly. That's it. Right. That's the sum part. All the argument was very focused on technical procedural questions about who can enforce Section 3 and against whom. Is it the states? Is it Congress? Is it someone else? And, you know, whether the provision applies to the president at all. But it didn't seem like the justices were coalescing around any of those theories, or at least Trump and Mitchell's versions of those argument. But things became more clear, I think, to all of us when Jason Murray, who was defending the Colorado Supreme Court's decision,

yeah, no relation, not part of this Murray clan, when Jason Murray took the lectern. Based on the various colloquies between Murray and the justices, we are pretty convinced that the court is going to reverse the Colorado Supreme Court on the ground that states cannot disqualify federal officials or perhaps just the president absent congressional authorization to do so. This is a little different from any of the arguments Mitchell made, though it's related to some of them. So we're going to flesh that out. And we should note that it's not clear how exactly the court will justify this new, air quotes, rule that states can't disqualify federal office holders absent congressional authorization. But it does seem like that is exactly the direction that they're headed in. So we're going to play a few clips outlining this theory for reversing,

and then we'll discuss them. And again, you will hear in these clips different bases that are floated kind of for the idea that states can't disqualify federal officeholders absent congressional authorization. And we'll explain that after we play the clips. So let's start with this one from Chief Justice Roberts. I mean, the whole point of the 14th Amendment was to restrict state power, right? States shall not abridge privileges 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 Confederate states, to enforce, implicitly authorize, to enforce the presidential election process, that seems to be a position that is at war with the whole thrust of the 14th Amendment and very ahistorical. Okay, so this is about the 14th Amendment and the overall purpose of that amendment. So the chief here seems to be saying that the 14th Amendment told states a bunch of things they couldn't do, right? They can't deny equal protection, privileges and immunities, due process. So it would be weird, incongruous, inconsistent with the overall goals of the amendment to read another section of the amendment to affirmatively empower the states. And particularly when the final section, Section 5, gives authority to enforce the 14th Amendment not to the states but to Congress.

This is kind of a purposivist or structuralist argument about the amendment. And by structuralist, we just mean something about the nature of our government and the relationship between the states and the federal government and the people, and that the court infers from the organization of those relationships, a kind of meaning about the structure of the document, the Constitution or the 14th Amendment itself. Okay, here's the next clip. This is from Justice Elena Kagan. But maybe put most boldly, I think that the question that you have to confront is why a single state should decide who gets to be president of the United States.

In other words, you know, this question of whether a former president is disqualified for insurrection to be president again is, you know, just say it. It sounds awfully national to me. So whatever means there are to enforce it would suggest that they have to be federal national means. Why does, you know, if you weren't from Colorado and you were from Wisconsin or you were from Michigan and it really, you know, what the Michigan Secretary of State did is going to make the difference between, you know, whether candidate A is elected

or candidate B is elected. I mean, that seems quite extraordinary, doesn't it? Here, Justice Kagan is gesturing at a principle of federal supremacy over federal elections that isn't necessarily tied to the 14th Amendment in particular. She's saying, in general, when truly national interests are at stake, the Constitution is wary of giving the states the role as primary movers. So some examples of doctrines that reflect this vision of federal supremacy and disempowering the states in matters of national importance include, for example, the Dormant Commerce Clause. That is a negative principle the court has inferred from the Commerce Clause, that state laws burdening inter-state commerce, commerce between the states, are disfavored, but that Congress may specifically authorize them if it so choose.

There are also doctrines of inter-sovereign immunity that limit the extent to which states can regulate the federal government in particular, again, because federal officers represent the entire nation, whereas individual states just represent that state. It's interesting because Justice Thomas and other justices have expressed skepticism about the Dormant Commerce Clause, among other doctrines, because they say it's not explicit in the constitutional text. It is another structural principle. So it will be interesting to see whether all justices sign on to some version of this other structural principle they might infer from other aspects of the Constitution. U.S. term limits versus Thornton, that's a case, is also an illustration of either this principle or a related principle. You probably heard references if you listen to the argument in the first 30 minutes, there were a lot of references to term limits. And people, I think,

might have been confused, at least the Chief Justice either was or worried that others might be because he spoke up to say, when you're talking about term limits, you're actually talking about the Thornton case, right? And of course, that is what Jonathan Mitchell was talking about. And it's a case that basically asks whether states can impose term limits

on members of Congress. There was a real movement afoot to do that in the 90s until the court put a stop to it in term limits versus Thornton and held that states can't, that the Constitution sets forth the requirements for membership in Congress and states can't add to those.

Although I do feel like Thurton is distinguishable in this case, because Colorado here is really just trying to implement a requirement in the Constitution rather than create a new one. But this argument and the case in particular are ones that Mitchell spent a lot of time on and did seem to me to maybe be getting some traction. Yeah, Mitchell seemed to want to square that circle by saying, well, the Constitution just prevents insurrectionists from holding office and the states are trying to prevent them from running for office. As we've noted before, that's slicing the bologna pretty thin

and potentially creating all sorts of practical problems in delaying the determination about whether someone is disqualified from office. So I don't necessarily see the justices embracing that distinction, but that was his version of the Thornton argument. And if it seemed like many of the justices wouldn't get down with that Thornton-esque argument, you can count on one Neil M. Gorsuch to actually embrace it wholeheartedly. So here's an exchange where Justice Gorsuch seems to be a little Thornton forward. Do you agree that the state's powers here over its ballot for federal officer election have to come from some constitutional authority? Members of this court have disagreed about that.

I'm asking you. The majority of this court has said that those powers come from Article 2. But we think that the result is the same whether the court locates it in Article 2 or in a reserved power under the 10th Amendment. But you accept that this court has held, you're not contesting this or asking us to revisit that decision in Thornton or term limits or whatever you want to call it, that it has to come from some federal constitutional authority. This is offering another basis for the rule that states can't disqualify federal office holders absent congressional authorization. But again, like the other Thornton-related arguments, this is also a kind of structural argument.

Okay. And now we have Justice Katonji Brown-Jackson offering yet another justification for the idea that states can't disqualify federal officeholders without congressional authorization. I guess my question is why the framers would have designed a system that would, could result in interim disuniformity in this way, where we have elections pending and different states suddenly saying you are eligible, you're not on the basis of this kind of thing. So this, I think, is kind of outlining a different structural aspect of federalism, that where there is a strong interest in having a single uniform rule, the Constitution assigns the power to make that rule not to the individual states, but to Congress.

And because this is arguably a theory in search of a justification or home, here is yet another possible justification for the court's likely conclusion that states can't disqualify federal officeholders, or at least potential presidents, without congressional authorization. This one also from Justice Kagan. Mr. Murray, you talked, you relied on the state's extensive powers under the electors' cause. You talked about the states having a role in enacting, you know, typical ballot access provisions. I guess, you know, it strikes me that we've put some limits on that, and I'll just give you Anderson v. Celebrasi as an example of that,

where we said, in fact, states are limited in who they can take off a ballot, and that was a case about minor party candidates. But the reason was that one state's decision to take a candidate off the ballot affects everybody else's rights. And we talked about the pervasive national interest and the selection of candidates for national office. We talked about how an individual state's decision would have an impact beyond its own borders. So if that goes for minor political party candidates, why doesn't it go a fortiori for the situation in this case? And this is more of a First Amendment or voting rights angle to the case. She is saying that states can't restrict associational rights and voting rights and the

ability to select a candidate absent sufficient justification or authorization to do so. It is related to the federalism supremacy angle, since she is suggesting they are additionally infringing the rights of other states' citizens, but it's a slightly different take on that aspect. So there are many candidates for how to ground this principle, and it's not clear which, if any of them, is going to command a majority of the justices, but it does seem like some version of that principle is what they're going to go with. And we mentioned that this is related to, but actually kind of different from the theories Mitchell, Trump's lawyer, focused on. So we'll talk about the arguments Mitchell and Trump offered later on in the episode. So that is basically where it seems like the court is headed. Colorado can't take Donald Trump off of the ballot without congressional authorization.

So what do we inventing this argument in real time, because this wasn't really the argument that either Donald Trump or Jonathan Mitchell actually put forth. So just to pause to underscore that, there were, I kid you not, three paragraphs. That's three paragraphs in Trump's opening brief that relate to this argument. But they are all about Griffin's case, and that was about a state officeholder. So Mitchell and Trump were pushing the argument that states can't disqualify state or federal officeholders absent congressional legislation. So this idea that states can't just disqualify federal officeholders is really something that emerged later and quite late in the game. And there is definitely some intuitive appeal to the court's version of this argument, right? So there is clearly a strong interest in uniformity here when we're choosing a president for the whole country.

And if states disqualify someone from running for president, they're not just shaping who holds that office and who represents their state, but obviously who represents other states and other members of the polity throughout the entire country. I think that's right, though that is partially offset by the fact that in this case, the states are claiming to be enforcing a requirement that the Constitution imposes on the entire country, not some independent requirement some individual random state came up with. Plus, you know, consider some possible implications of the idea that states can't throw out barriers to electing national candidates like the president. with states interfering with federal elections for federal officers via state law, then why don't all state voting restrictions, which affect who can vote for presidential candidates, trigger the same kind of scrutiny, like voter identification laws? Those are going to affect where the state's electoral votes for president go, but I don't see this court that concerned with those.

Yes, and it's not just about ballot access, just to sort of argue against the position I just said has some intuitive appeal, because I think in the abstract, it absolutely does. But it is pretty willfully blind to the reality of our highly federalized election administration system. So that goes both for, you know, regulation of the vote, ballot access, how you even get on the ballot as a candidate. And the Supreme Court has imposed some limitations and guideposts on what states can do with respect to ballot access. But there's tons of variation, even in terms of who does appear on a ballot, like a third party or independent candidate sometimes will appear in some states and not others. So this idea that there's an absolute uniformity requirement,

if we're talking about a presidential election, is inconsistent with a lot of settled practice. And it's also inconsistent with two other kind of ideas bandying about in the court's other jurisprudence. So on a very general abstract level, the idea that states can't disqualify federal officeholders, particularly presidents, seems a little inconsistent with some of the justices' enthusiasm for the independent state legislature theory. Remember that the ISLT imagines that states and state legislatures in particular get to set the rules about federal elections because the Constitution assigns them that role. And here, the Colorado Supreme Court said that the state

legislature had authorized the disqualification proceedings to enforce this provision in the Constitution. So is the 14th Amendment an exception to the independent state legislature theory? If so, why? What are other possible exceptions? I don't know. The Gorsuch-Murray exchange we played above relates to this since Murray is invoking the electors clause as a basis for the state's authority here. But I think the court would have to say that the Colorado legislature could enact a law that awards the electors to Biden because Trump is an insurrectionist. You know, Justice Alito asked about this as if to suggest the legislature couldn't do such a thing. But if they really do think, a la ISLT, that state legislatures get to set the rules regarding federal elections, then the state legislature should be able to do so, in which case that's also going to lose my mind at how inconsistent it will be for the court, which has a very narrow view about Congress's powers under Section 5 to say, oh, states can't do anything to enforce Section 3,

and we, Supreme Court, can't review this because the Constitution gives Congress a particularly important role in Section 5. The Chief Justice kept invoking Section 5 as if to say, wow, oh my gosh, the Constitution gives Congress a big role in this amendment, the Chief Justice kept invoking Section 5 as if to say, wow, oh my gosh, the Constitution gives Congress a big role in this amendment, yet they don't allow Congress to enact civil rights laws that Congress thinks are important to enforcing the 14th Amendment guarantees against the states, like the 1875 Civil Rights Act, or when they struck down RFRA as applied to the states in City of Bernie v. Flores, that's the Religious Freedom Restoration Act, or other civil rights legislation like the ADA or ADEA in Kimmel and Garrett.

And it's just a little too much for me. One thing I was nervous about going into the argument was the possibility of the court here somehow opening the door to another constitutional provision, that's the 22nd Amendment, which limits presidents to two terms, being somehow non-enforceable unless Congress passes some implementing legislation. And if not, like states having trouble keeping, say, a would-be third term candidate, Trump, off of the ballot in 2028. So this is like the nightmare scenario that I've spent a decent amount of time mulling over. And Justice Sotomayor, I think, had done the same because she asked Jonathan Mitchell this question directly, right? Like, could the logic of his position and of Trump's

position pave the way for a president to run for a third term and the state wouldn't be able to disqualify him because states can't keep someone off the ballot in a nationwide election? And Mitchell said no. So let's play that here. So you want us to say, I'm wondering why the term limits qualification is important to you. Are you setting up so that if some president runs for a third term, that a state can't disqualify him from the ballot? Of course a state can disqualify him from the ballot, because that is a qualification that is categorical. And it's categorical now, but I kind of wanted somebody to pin him down on, no, I won't be back here in four years making the argument that, in fact,

the 22nd Amendment, like Section 3 of the 14th, can't be invoked by a state by itself. What does it even mean to be categorical? Section 3 of the 14th Amendment is a categorical rule that insurrectionists can't hold office, right, unless Congress removes it by a disqualification of two thirds. So... Right. And it's also a little, this answer exists in some tension with, say, Justice Alito's suggestion that if red states wanted to keep Biden off the ballot as an insurrectionist, like, so I'm not sure how, you know, any of these are malleable or categorical, depending on how you frame them. And so I'm not sure his answer totally assuaged the concerns I had going in. So I'm just going to say all of this seems to be putting a lot of authority in the hands of Congress. And I don't know about you, but I'm a little troubled by the

prospect of allowing Congress to have the authority to weigh in on an issue of national importance on a relatively short time frame right now. And I don't know, when I heard that, I just sort of stared in migrant crisis slash border control. I wasn't sure that Congress was really fit for purpose. You add to that, there was so much concern in this argument, which we'll touch on later, about the states retaliating against political officials they didn't like or just disqualifying opponents of a political party. And it's like, have you paid attention to Congress in the last eight years? Right. Like not just the attempted impeachment of Secretary Mayorkas, but also the failed effort to impeach Donald Trump, which the D.C. Circuit conveniently reminded us was informed by political considerations in

Congress. And so, you know, we never got a chance to talk about the failed Mayorkas impeachment, and we won't have time to deal with it here. But all I'm going to say is Frank Underwood would never. Like, Jesus Christ, Mike Johnson, count some votes. Like, what the hell? Boy math. Boy math or bro math. Anyway, this is all to say that we are not ones to toot our own horns, but I will note that in our very first episode in which we covered the Colorado disqualification case, we had this to say. Roll the tape. Just as a practical matter, I don't think there is any way that this court is going to allow the Colorado decision to stand because it would create a patchwork quote before the election. The uniformity argument is powerful.

That makes sense. Like a patchwork where ballots look totally different from the perspective of the major party candidate across the country seems intolerable. Very nice job, ladies. Again, you know, some people may be the some genius, but sometimes they need some women to argue their case for them. Girl math. Girl law. Better. So the justices also discussed other arguments that Donald Trump made that, just to be very clear, the justices did not seem that into these arguments. Nevertheless, that did not stop Jonathan Mitchell from beating these arguments like a dead horse. And again, I sort of wanted to stop him to say, bruh, they're just not that into you. They're into this other thing. Go with that. Keep going with that. But not these arguments. This is all to say, though, that it is very possible here that we are going to get a very

fractured set of opinions where there's a coalescing around one particular theory, but then there are also some side writings where they discuss some of these more fringe theories that didn't seem to get a lot of traction with a majority. Side hustle, side writings. One of these arguments was something we referred to as the non-self-executing argument. There are a couple of different versions of this,

but they both relate to the role of Congress. And the first is just that basically Section 3 needs federal legislation before a state can remove someone from the Congress. And the first is just that basically Section 3 needs federal legislation before a state can remove someone from the ballot. And Trump and Mitchell were also arguing that states can't disqualify someone from appearing on the ballot because Section 3 only prevents someone from holding office, not running for it and winning. And if they do win, then Congress could always remove the disqualification

up until the moment of someone actually holding the office. So states can't prevent that process from happening. The justices were not that into this argument either for a few reasons. One, as we discussed with Rick Haasen in our preview of this case, this theory would really have the potential for chaos. It would effectively require a decision to be made only after an election. That is because Congress could always choose to remove the disqualification right up until the moment someone takes office.

States would hold the election with Trump on the ballot. Trump could win. And we just wouldn't know until January 5th or 6th whether he could hold office. Second, the justices noted that this theory doesn't make sense because Congress could use other mechanisms to ensure insurrectionists are disqualified. And these other mechanisms, which Mitchell conceded were permissible, seem like end runs around the idea that the decision has to be made by Congress, according to a two-third vote about whether to remove a disqualification. You know, the justices invoked a practice of quo warranto writs. If you heard that and you were like, what is that? That is where Congress or state legislatures authorize people to file what are called quo warranto writs, which just result in an inquiry into whether someone is holding

their office legally. So this theory that states can't disqualify anyone because Congress could remove the disqualification is sometimes associated with Griffin's case. And we've alluded to that case before. In fact, I feel like we've talked about this case far more than it actually deserves to be talked about. But just again, to put a line under it, Griffin's case involved a defendant's challenge to a criminal conviction. And the challenge was based on the fact that the presiding judge in that proceeding had previously fought for the Confederacy. So Griffin invoked this insurrection clause for the proposition that his conviction was improper because the judge who had presided over the entire proceeding had been a member of the Confederacy. Chief Justice Salmon Chase, who at the time was writing circuit and issuing this opinion for an appellate court and not the Supreme Court, ruled that the quote-unquote insurrection ban could not

be enforced against the judge unless Congress first passed the law. So that's the origin of this whole idea that it's non-self-executing, Section 3. And one justice here, one of our favorites, Coach Kavanaugh, seemed to really want to make Griffin's case happen. So let's play that clip. Don't you think Griffin's case is also relevant to trying to figure out what the original public meaning of Section 3 of the 14th Amendment is. It's by the Chief Justice of the United States a year after the 14th Amendment. That seems to me highly probative of what the meaning or understanding of that language, otherwise elusive language, is.

Now, to be very clear, everyone else was like, Brett, dude, stop. Stop trying to make Griffin's case happen. It's not going to happen. And early in the argument, Justice Sotomayor had actually already kind of shredded the Griffin's case theory of the case. Like, she noted that Griffin's case was not precedential, which it isn't, that it was a circuit court case, that the justice who wrote the opinion, Chief Justice Salmon Chase, later went on to write another opinion, but this one for the Supreme Court that disavowed Griffin's case. And in that subsequent opinion issued by, again, the court, Chase said that Section 3 of the 14th Amendment was self-executing and that Jefferson Davis, president of the Confederacy, would be disqualified under it. I mean, history and tradition, but obviously that mattered less to the court than lots of consequentialist

considerations. And one other thing about Griffin's case that I think didn't get as much attention, but that Leah has previously mentioned, is that the stakes of siding with the argument that the judge was disqualified in Griffin's case would necessarily have invalidated a lot of office holding, not just the judge in the case. And so there are all kinds of context-specific reasons to understand why Chase ruled that the provision was not self-executing that supply yet another reason that the case just cannot bear much weight in this analysis. I want to go back to something you just said, Kate, about the whole idea of history and tradition, but only when we want to take it into account. Speaking of that selective fidelity to history and tradition, I would love for our listeners to check out this memorable moment when Justice Sotomayor decided to spend a little time in the shade room shading her colleagues.

History proves a lot to me and to my colleagues generally. Hello, Peppermint Petty, or shall we call you Petty LaBelle? Either way, Justice Sotomayor, we are here for this shade all day, every day. And Justice Sotomayor was not alone in trying to give Griffin's case a dignified burial. Even Amy Coney Barrett basically made clear that no, no, Griffin's case is not going to do it. She noted that the case arose as a collateral challenge in habeas, which was new at the time, and those rules were different. The chief's opening hypo also revealed some uncertainty about the idea that states can't ever disqualify insurrectionists.

So let's play that clip here. Counsel, what if somebody came into a state secretary of state's office and said, I took the oath specified in Section 3. I participated in an insurrection, and I want to be on the ballot. Does the Secretary of State have the authority in that situation to say, no, you're disqualified? But we should note that in this hypothetical, the Secretary of State would have to keep the avowed insurrectionists on the ballot for president under the Supreme Court's seeming theory of this case, unless Congress authorized the state to take them off. And of course, you know, if that's one set of arguments that Mitchell and Trump made that the

court weren't into, there was another argument. And that is the one Justice Kagan memorably referred to during this argument as, quote, the officer stuff. She really said that, as you can hear from this clip. Will there be an opportunity to do officer stuff or should we? Absolutely. Absolutely. Justice Kagan is basically referring to the idea that Section 3 does not apply to President Trump for one of two reasons. One reason that Jonathan Mitchell and others have made on behalf of President Trump is that he has never taken an oath to support the Constitution. And on that view, the presidential oath is a separate and distinct oath from the oath that other federal officers might take. The other rationale is that presidents aren't actually officers of the United States,

the group of people that Section 3 disqualifies. And for that reason, presidents aren't covered by that provision. To be very clear, there was virtually no interest in this argument, despite the proponent of this argument receiving a pretty flattering write-up in the New York Times the day before argument in a profile by Charlie Savage. Though at points, it did seem like Neil Gorsuch was a little officer curious. And there were moments where it seemed like Justice Jackson may have been as well, but it was a little bit hard to tell what her opinion was. So she was asking about the distinction between office, officer, holding office under the United States. And so I thought she was a little

officer forward curious, too. I mean, she explicitly said something actually that John Lovett asked me when I went on Pod Save America, which is why isn't president written into the list? Like it has senators, it has representatives, it has electors for president and vice president. Why didn't they put president in there? And I actually think the historian's brief in this case, it's Jill Lepore and a bunch of other historians, makes really, really clear why that was. Like they were mostly concerned about individuals who had already run. There were like a bunch of Confederates who had run for Congress and then been excluded. And electors, they were kind of worried about including because electors don't take a separate oath. So there were very good reasons to include the couple of examples you do. And then all other officers was just meant to be a catch-all. And all this other

contemporaneous evidence made clear that Jefferson Davis was very front of mind. There's newspaper reports at the time saying Section 3 is the thing that is going to keep Jefferson Davis from ever becoming president. And I just don't know that that historical evidence was presented in the argument to Justice Jackson in a way that I think she might have responded to. I mean, of course, I'm sure she's read the briefs, but she didn't seem satisfied by them. And I was just like, wish there had been more engagement with the really excellent historical research that was presented to the court. History and tradition is to the contrary of the court seriously engaging with history and tradition. As for the oath question, the idea that Section 3 doesn't apply to Donald Trump because he hasn't taken an oath to support the Constitution because he hadn't previously held other federal offices as other presidents of the United States had, well, Justice Sotomayor had this to say about that. You argue that even though the president may or may not qualify, presidency may or may not qualify as an office under the United

States, your principal argument is that the president is not an officer of the United States, correct? I would say it a little more forcefully than what Your Honor just described. We believe the presidency is excluded from office under the United States. But the argument we have that he's excluded the president as an officer of the United States is the stronger of the two textually and has fewer implications for other constitutions. Bit of a gerrymandered rule, isn't it, designed to benefit only your client? I love her use of the word gerrymander. That seemed like a very distinct callback to Ruscio versus common cause, a little more dragging of her colleagues. And to that, I can only say, stay petty, Justice Sotomayor. And on the view that the presidential oath is somehow different because it doesn't require the president to say that he will, quote unquote, support the Constitution, but instead requires him to say that he will quote unquote support the Constitution, but instead requires

him to say that he will preserve, protect and defend the Constitution. We want to highlight some previous briefing on the topic of the presidential oath from some members of the Trump administration. So this previous briefing is from the travel ban case, where of course, President Trump announced a ban on entry by people from several Muslim-majority countries. And in the course of arguing that the travel ban was legal, the Trump administration said as follows. They said that many of the statements the plaintiffs pointed to that had illustrated the president's anti-Muslim bias were made, quote, before he swore an oath to support and defend the Constitution, end quote. The brief continues, taking that, you know, they used to think that oath was pretty important, less so now.

I love that you had those receipts, like a CBS-style receipt in your back pocket for them, Leah. Good for you. Leah always comes prepared. You know, the D.C. Circuit judges according to receipts. Heather Gay lives her life according to screenshots, timelines, receipt, and so do I. So on both the oath point and the officer point, which are about whether presidents are subject to Section 3, we had Elena Kagan enter the chat with the reason why this argument just does not hit. Namely, why the fuck would the one office, the 14th Amendment, allow insurrectionists to hold be

the president of the United States? Here is Elena Kagan. And if I could just understand, I mean, given that you say you don't have a lot of evidence that the founding generation or the generation that we're looking at is really thinking about office versus officer of the United States. I mean, it would suggest that we're looking at is really thinking about office versus officer of the United States. I mean, it would suggest that we should ask, is that a rule a sensible one? You know, if they had thought about it, what reason would they have given for that rule? And it does seem as though there's no particular reason, and you can think of lots of reasons for the contrary, to say that the only people who have engaged in insurrection who are not disqualified from office are presidents who have not held high office before. Why would

that rule exist? Million dollar question. Billion dollar question. Billion dollar question, seriously. And, you know, in the spirit of taking a moment to give ourselves a little pat on the back, I'm going to give myself a pat on the back for going with the Elena Kagan rebuttal to the officer argument from the previous episode previewing this case. It just defies logic. The one thing insurrectionists can do is be commander in chief of the army. Like, that seems a little bit odd. Also, you know, the people that wrote this provision, one person who may have been in their minds was, I don't know, the president at the time, Andrew Johnson, who was basically like undermining reconstruction and a Confederate sympathizer. So the idea that they would immunize that office in particular is absurd. I did wonder, Leah, during Earl argument argument why no one mentioned Andrew Johnson at all.

History and tradition, Melissa. History and tradition. Only if it works for you, though. Otherwise, purpose, context, and legislation. That is the history and tradition. To be very clear, it wasn't just the liberal justices who had some questions about this. In her questions with Jonathan Mitchell at one point, Justice Amy Coney Barrett said, quote, Assume I disagree with you about the officer claim. And all I could say was like, not Amy

Coney Barrett putting on some Aliyah Kagan drag, but okay, queen, you can do it. And I actually think not only was Aliyah Kagan and Amy Coney Barrett skeptical of this, I kind of thought Mitchell was skeptical of his own argument, honestly. Like he was suggesting that you have both officer and office. And there's both the question about whether the prior oath is an oath of an officer and whether the presidency is an office. And he did seem to suggest that the officer argument was the one that they were mostly relying on because this office argument was messy and intersected with other constitutional provisions in ways that might be problematic. So first he was like, no, we're really focusing on the office or not office. And then at some point he seemed to concede there wasn't a great rationale for them meaning

different things. So I am honestly not sure he even, not that there's a higher body for whom to preserve the argument, but he basically seemed to abandon it anyway. So those are the arguments that it seems like the court isn't going to go for. Dropped it off in a safe deposit box by a firehouse. Understandably, he's got plenty of them. Boom. All that Queen Melissa.

But there were other arguments he was getting traction with and so decided just to cut bait on the officer argument. There were, though, also arguments in Trump's brief that got basically no airtime or very, very little airtime. And the most notable of these, of course, was whether Trump had engaged in insurrection at all. The justices basically didn't touch this argument. We predicted they would want to mostly steer clear, but I still thought it was conspicuous how little engagement there was with the underlying conduct. And Jackson was the exception, right? So she did try to engage Mitchell a little bit on why the events of January 6th weren't an insurrection. Or she sort of suggested he had conceded they were, but that Trump didn't engage in them. But he really pushed back, at least in

the argument, which led to this memorable exchange we'll play here. But for an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence. And this... So the point is that a chaotic effort to overthrow the government is not an insurrection? No, we didn't concede that it's an insurrection. The exchange also resulted in, I think, an important concession from Mitchell, which is Mitchell said the events of January 6th were shameful, criminal, violent, all of those things, but did not qualify as insurrection as that term is used in Section 3. And I'm just not sure his client agrees. The other argument that did not get a lot of airtime, which I thought was surprising, was the First Amendment argument, which Donald Trump has, no pun intended, trumpeted ad nauseum. And this is the idea that the First Amendment precludes imposing any penalty on him for the events of January 6, because he was simply exercising his rights to free speech.

In addition to the arguments that Trump made that received no airtime, there are also some arguments that weren't in Trump's brief that got some airtime at argument, in addition to the argument that it seems like the justices are going to embrace that there has to be some kind of congressional authorization before this disqualification could happen. So many of these additional arguments came from who else but Samuel Alito, who made his feelings about this case. Second chair at the lectern, Samuel Alito. He wanted to be first chair, Melissa, because he made his feelings about this case more than clear.

And as always, he had a lot of them. Can we just stop for a minute? This was so wild to me that he was actually introducing new arguments as though he were like, you know, a sixth year associate who had been brought in on the case and was really teched up. But in fact, he's actually a justice to whom they are making these arguments. And he's literally feeding new arguments to the guy at the lectern. This was wild to me. Yeah, I mean, on some level, like the rest of the court was doing it too,

because the version of their, you know, Congress needs to authorize this disqualification procedure that they seem interested in was not really the version that Mitchell had offered, though he had at least offered a related version to it. But they all coalesced around that at some point? Yes. Yeah. I mean, I think so. I think they all coalesced around that pretty quickly. He was like, no, no, I've got others. I've got others. I've got a whole briefcase. How about these babies, right? Got a few other ones up in my sleeve. Let's take these out for a spin. So just as Alito floated the suggestion

that maybe isn't there some structuralist argument, by which he means some argument not based in the text of the Constitution, based on all of the problems that I, Sam Alito, have with the Colorado proceedings in this case. So let's play the series of clips in which he cobbles together this banger. The consequences of what the Colorado Supreme Court did, some people claim, would be quite severe. Would it not permit, would it not lead to the possibility that other states would say, using their choice of law rules and their rules on collateral estoppel, that there's non-mutual collateral estoppel against former President Trump. And so the decision of the Colorado Supreme Court could effectively decide this question for many other states, perhaps all other states.

Could it not lead to that consequence? Yeah, exactly. So in this decision, the trial court in Colorado thought that it was proper to admit the January 6th report, and it also admitted the testimony of an expert who testified about the meaning of certain words and phrases to people who communicate with and among extremists, right? Should these considerations be dismissed as simply consequentialist arguments, or do they support a structural argument that supports the position that you're taking here? In addition to his concerns about structuralism, Justice Alito was also deeply concerned about possible retaliation,

which is to say that if the court allowed Colorado to disqualify Donald Trump, then everyone would just disqualify political opponents by simply saying that they were all insurrectionists. And this also seemed a bit like an invitation, but let's roll the tape. Let's change it so that it's not after the election. It's three days before the election based on the fact that the polls in that state look bad. Can they do it? And here's another one that is brand your political rivals insurrectionists forward. We've been told that if what Colorado did here is sustained, other states are going to retaliate and they're going to potentially exclude another candidate from the ballot. What about that situation?

Trump, for one, seemed to be really excited about this line of questioning. So he seemed very focused in his remarks after the arguments about the possibility of just disqualifying people by saying they're insurrectionists. Because in those remarks, he suggested that any insurrection that might have occurred on January 6th was caused by, wait for it. I think it was an insurrection caused by Nancy Pelosi. You get an insurrection. You get an insurrection. It's just doling those babies out. So we're also a few Alito remarks that might have been difficult to decipher if you have not been locked in your basement for the last decade watching Fox News nonstop. Because sometimes you really cannot understand what Sam Alito is saying unless you put yourself in that position. So what do we mean?

Well, Justice Alito asked a hypothetical about whether states could disqualify someone based on the following theory. Suppose there's a country that proclaims again and again and again that the United States is its biggest enemy. And suppose that the President of the United States, for diplomatic reasons, think that it's in the best interest of the United States to provide funds or release funds so that they can be used by that country? Could a state determine that that person has given aid and comfort to the enemy and therefore keep that person off the ballot? And if you're thinking to yourself, how did he come up with this one? Well, listeners, let us enlighten you. WTF?

Exactly. If you consume Fox News nonstop, you are aware that there is a suggestion out there in that metaverse about how President Biden may have given money to Iran and that this is some huge constitutional crisis. And so this is Sam Alito channeling that theory and suggesting, well, maybe states would go ahead and disqualify Biden because he gave money to Iran. Again, you truly cannot understand this man unless you watch Fox News nonstop and just scream at the television like an angry old Fox News grandpa. No question about how this guy is voting.

That's where he lives. When I heard this, all I could think about was 303 Creative and Black Santa. And now when he said that in the argument for 303 Creative, all we could think of was he's definitely been listening to Megyn Kelly's podcast. This guy does nothing but watch fox news non-stop yes right which raised the question for me which was is there a way for him to rule against trump but preserve a state's ability to exclude biden from the ballot because of his funding of iran i'm just gonna try to write something that does that yeah that's the concurrence he's gonna have

a separate writing that just is one footnote. Fuck Joe Biden. Bring it on. The Let's Go Brandon theory. Yes, the Let's Go Brandon which we're not going to play. But the two justices basically went back and forth with each other about whether Mitchell's arguments were in tension with one another, revealing kind of once again that the justices between sitting breaks and maybe holiday break may not have, let's say, solved or cured all wounds. Well, so I have a question because when I heard this colloquy, when Sam Alito was like, there's no tension, and Justice Kagan was like, no, there is tension. And I was like, are you talking about Jonathan Mitchell's argument or is there something else going on? It did seem to be about this, didn't it?

Yeah, a little. There was tension. We have tension. No, we don't. Yes, we do. We have some tension. This is Elena Kagan's secret cry for help. She is blinking twice and she needs people to pick up the message.

Here there is tension. Exactly. That's a safe word. Well, it's both Alito and then Jonathan Mitchell, some genius at the lectern. I think the combination of those two, I think,

were maybe put her over the edge. She had this, I thought, really kind of funny. How did she keep it together? How did she keep it together? This is why she's qualified to be a justice. There was this funny moment that sort of involved her kind of lightly ribbing some law professors and not so lightly, I thought, ribbing Jonathan Mitchell in his response to her. So let's play

that clip here. Yeah, there certainly is some tension, Justice Kagan, and some commentators have pointed this out. Professor Bode and Professor Paulson criticized Griffin's case very sharply. Then I must be right. Then I must be right. Well, if your law professor friend said it, Jonathan, then I guess that means I made a good point. So thank you, because that was kind of what she seemed to be saying when he interjected by invoking the Bode andPaulson article. She was fiery. Yeah, this is maybe against interest, but respect, Elena, respect for this neg. Additional note from me, I think Clarence Thomas needs to reread Eric Foner's history of Reconstruction.

So here was Justice Thomas's capsule summary of that history. You look at Foner or Foote, Shelby Foote or McPherson, they all talk about, of course, the conflict after the Civil War. And there were people who felt very strongly about retaliating against the South, the radical Republicans. But they did not think about authorizing the South to disqualify national candidates. If you actually read Foner, you would note that Foner is saying, actually, the idea that Reconstruction was about retaliation against the South was the product of the Dunning School of History and the countermovement of redemption. That's not actually what Reconstruction was about. So again, maybe just like go back and read it again one more time a little bit more closely. At another point,

Justice Kavanaugh suggested the word and maybe even the concept of insurrection was inscrutable. So let's play that clip. Well, when you look at section three, the term insurrection jumps out. And the question is, the questions are, what does that mean? How do you define it? Who decides? Who decides whether someone engaged in it? What processes, as Justice Barrett alluded to, what processes are appropriate for figuring out whether someone did engage in that? I thought this was very interesting, like a very interesting take from a justice who's about to fucking overrule Chevron, or at least limit it substantially, and insists there are never really any ambiguities in statutes, and courts should just decide what every word and phrase in a statute mean, because it's always

going to be perfectly clear, even though the law might not provide clear answers to that. And yet here, he's like, yeah, word insurrection in the Constitution, don't know her, can't do it. It works on levels. I see. Basically what he's saying. He's like an onion, many layers. This is why I'm crying constantly. Something that did not come up at argument, but that had been playing out in the lead up to the argument is a dynamic that Kate had earlier noted this entire term, and that's the fact that this entire court seems to be shadowboxing with the ghost of Justice Scalia, which is an interesting way to spend your time. Specifically, throughout this argument, there were debates about whether Justice Scalia's writing in Noel Canning, which is a case about recess appointments, signaled that Justice Scalia believed that presidents are, in fact, officers of the

United States. The proponent of the theory that presidents are not officers actually wrote to Scalia something to the effect of, you wrote this in Noel Canning, but you didn't mean it, right? And Scalia apparently wrote back saying, basically, I said what I said, bitch. And then people have been using that exchange, including the private correspondence, which was at least shared publicly, as evidence to rebut the officer theory. Because we all know that if Justice Scalia thought something and signaled it in an opinion, it can't possibly be wrong. So I thought all of that was, again, really fascinating. And, good on you, Kate, for calling this early and often. But yes, a lot of people shadow dancing with a dead justice. Well, and I thought that their shadow dancing is a different thing.

Maybe they're doing both. Maybe, maybe both. Shadow dancing on the shadow docket with a shadow boxing Justice Scalia. With the shadow in the shadow room. I don't know. But honestly, like the fixation on this correspondence from Justice Scalia and his separate writing and Noel Canning made me wonder in the lead up to this argument about whether a fair number of people in maybe the conservative legal movement have daddy issues. And I still wonder that. But the fact that the court didn't seem interested in this, I think, was more of a reflection on their lack of interest in the officer argument than the fact that they themselves don't have daddy issues. So that's just some

armchair psychologizing. I was Justice Scalia's favorite. No, I was Neil. Exactly, exactly. I was Justice Scalia's favorite. Well, exactly. Like they basically had this fight in Bostock, the Title VII case, right? Like who was Justice Scalia's heir? Well, Mitchell clerked for Justice Scalia. Yes. He was the favorite all along. I'm telling you. I'm telling you. Daddy issues. He probably was. So as happens with some frequency, there was a competition between Justice Alito and Justice Gorsuch on who could be the bigger jerk, mostly to Jason Murray, who was arguing to support the Colorado Supreme Court decision. So here's entry number one in that competition.

Unless they were put into that office. No, no. We're talking about section three. Please don't change the hypothetical, okay? Please don't change the hypothetical. I know I like doing it too, but please don't do it. And here's entry number two. You're really not answering my question.

It's not helpful if you don't do that. They should try smiling more. That's my first piece of advice. Or they should just listen to when Elena Kagan or Katonji Brown-Jackson say this sort of stuff because they managed to do it savagely, but also nicely. I will just say that Jason Murray clerked for Justice Gorsuch. So the fact that you could do this to your own clerk publicly means that you are an equal opportunity destroyer. And I guess that's something.

So good on you. I wonder if he even turned it up just to suggest that he was not partial. I don't know. Maybe. But he was really hard. I don't know. Maybe. But he was really hard on Murray, and I was surprised. But again, equal opportunity, as you say. Jason Murray also clerked for Justice Kagan. So maybe this is the payback for Jason Murray being a little, you know, bicurious on both sides of the aisle.

Disloyal and insurrectionist, as they say. Neil Gorsuch is about to disqualify him. Exactly. All right. That was the oral argument. It was kind of a shit show. It didn't take nearly as long as I thought it was going to take. Totally agree.

So that was really surprising, which to me suggested that they already know where this is going. They just have to map out on MapQuest how they're going to get there. I know. They take two hours for like any routine matters these days. So a case that important to take only two hours, it suggested to me that they were just kind of perfunctory about a lot of it. They were not going, not that I wanted seven hours by any means, but it was just, it was such a lazy set of arguments, set of questions on there, but not lazy in the advocates. I didn't love everything, obviously. But I just couldn't believe how sort of disengaged and

uninterested given the stakes of this case they were. And they were just like, it would be a mess. And so let's just find a rationale and be done with it seemed to be like the TLDR of the argument. There was almost just sort of like, couldn't you just do this on the papers and submit it on the shadow docket? And we could just issue a ruling like a perfunctory per curiam ruling and just get this done? Giving this entire decision to Congress, given the partisan nature of recent impeachments, right? And senators not willingly convicting someone who doesn't meet the residency or citizenship requirements for running for office. Like they didn't really flesh out how are we going to cash this theory out given competing considerations on the other side or potential implications of this position. I don't know. Because they know, I mean, again, pragmatism

is going to direct the outcome here entirely. This is going to be decided based entirely on practicalities. You cannot allow Colorado to do this because there are 34 other states where this is going to be an issue. And then that is actually chaos. And so my guess in terms of a prediction is exactly what I said before. Donald Trump is going to win here. This is the Colorado Supreme Court will be overruled. And I think the real question is just sort of how they do it. We are we've already gestured toward the line of argument and the rationale.

But I'm not sure this is going to be entirely unanimous or if it is unanimous, I think there I am pretty sure Justice Sotomayor will write a separate concurrence to sort of articulate some of the concerns she had around gerrymandering this whole argument to only apply to Donald Trump. Don't you think this has to be a univocal kind of opinion that the chief will try and get? I think there is a lot of pressure on that, and I think it will be 9-0 or 8-1. I think it's possible there will be separate writings, either saying maybe these other theories would do the trick as well, or this opinion is more limited and we're not answering these following questions. But I also think it's going to be a quick opinion. I think we are going to get this in short order. Again, given that they seem to have coalesced around a theory, that is also honestly what I thought once the Chief Justice stepped in during Jason Murray's argument and just said, like, how about this theory? And then everyone was like, yeah, that's a good one. And I do really hope that the Democratic appointees

manage to get an agreement not to stay the D.C. Circuit opinion and just to let it stand, because getting a unanimous opinion, restoring Trump to the ballot is a huge win for the Republican appointees, for Donald Trump, the Republican Party. And it eliminates a method of holding Trump accountable. And given that this other case is about the same idea and everybody knows there are zero legal arguments there for Trump to actually be immune. And the entire game is whether the trial can happen before the election. They need to ensure that that happens. A couple things just to go back just a minute in terms of frustrations with arguments not really surfaced. I thought not only the lack of kind of countervailing consequentialist arguments with respect to other constitutional provisions or what it means to insulate from this kind of accountability, an insurrectionist,

that was really frustrating. But I was also, when I let myself think about it, just like boiling with rage at the selectivity of interest and consequences when you think about the court's Dobbs opinion or Bruin opinion. It's like, it's totally inappropriate for us to think about people dying, kids dying, school shootings. None of that matters. What matters is this very austere examination of history and tradition, except when we do want to think about consequences. And then that's all we'll talk about. We won't even really pretend that the text and the history matter here. And it's just so hypocritical. It was enraging. So that I found deeply, deeply frustrating. And I do,

I totally agree with you in terms of, I don't think it's going to be 9-0. I think it'll be maybe 7-2 or maybe 8-1. But maybe they'll, maybe all of the liberals will say, yeah, and I don't think this is inappropriate. It matters as an institution that here we speak with one voice, but it also matters as an institution that we permit this process to go forward. Do not block all efforts to hold Trump accountable. Yeah, by not essentially signing off on a delay tactic that will functionally insulate this from a trial, because it's all about the same conduct. So I think they love, you know, refuting any suggestion that they do horse trading along those lines.

And I think they mostly don't. But here, the two cases are coming up together, essentially, and they're about the same conduct and the same person. And I just don't think they can separate out the consideration. So I do think that it's really, really important. And the same issue of accountability. And again, all of the justices were assuming in this case that one mechanism for enforcing Section 3 is congressional legislation, specifically congressional prohibitions on insurrection. And so they need to actually let that happen.

One other thing to just put out into the ether as they're drafting this opinion, you know, unanimous or close, is that I would really, really like it sort of prayers just like out into the ether for something making it into the opinion that the 22nd Amendment itself executing. And that even puts down a marker in this opinion that other accountability mechanisms for insurrectionists like criminal prosecution are not foreclosed. And it would be fantastic if this opinion also quietly dealt a death blow to the independent state legislature theory. So those are the things that I think could be silver linings if, in fact, this ends up a unanimous or near unanimous victory for Trump. There you go.

Our favorite little optimist finding silver linings everywhere. A hundred percent. They are not going to drop it. I haven't found them yet. Again, I think everything that you all have said is exactly right.

And the separation of powers argument that they seem to be sort of putting forth, like this is something for Congress to do. This isn't something that should be handled by the courts. You could say the flip

in the criminal prosecutions, like this actually is something for courts to do. This isn't something that should be handled by the courts. You could say the flip in the criminal prosecutions, like this actually is something for courts to deal with and courts should be allowed to go through the process of holding him accountable in a criminal prosecution. And we're not going to get that either. So, I mean, I think this is probably already written. It's already in the can. It's probably pretty bare bones and perfunctory

and it'll overrule Colorado without saying much more about accountability or what happened on January 6th. On that final bleak note, that's probably all we have time for. Before we go, I joined What A Day's Juanita Tolliver on Wednesday to break down the federal appeals court decision about whether Trump could be tried as a citizen and to discuss what happens next. You can listen to that episode out now on the What A Day feed. Second, Crooked's newest limited series, Dissident at the Doorstep, just dropped a new episode this Saturday. This podcast is a wild ride following the true story of one of China's most prominent human rights activists who later turns into a Trump MAGA

supporter just a few years later. Listen to new episodes of Dissident at the Doorstep every Saturday, available wherever you get your podcasts. Rowell with audio support from Kyle Secklin and Charlotte Landis and music by Eddie Cooper. We get production support from Madeline Herringer and Ari Schwartz. And if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us with five stars. It really helps.