Notice And Comment: The Supreme Court Argument In Trump v. Anderson

Here's my quick guide to the proceedings, plus a place for your predictions—on outcome, timing, and reasoning.

The U.S. Supreme Court (photo by Rudy Sulgan via Getty Images).

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This morning, over the course of two hours, the Supreme Court heard oral argument in Trump v. Anderson, which presents the following question: “Whether the Colorado Supreme Court erred in ordering former President Donald Trump excluded from the 2024 presidential primary ballot.”

You can listen to the argument at C-SPAN—where you can play back the argument at 1.5x speed, as I did—and you can access the transcript on the Supreme Court website.

Who were the advocates? Jonathan Mitchell, a former Texas solicitor general and law clerk to the late Justice Antonin Scalia, argued for Trump. Jason Murray—a partner at the Colorado litigation boutique of Olson Grimsley, as well as a former law clerk to Justice Elena Kagan and then-Judge Neil Gorsuch—argued for the Colorado voters who brought the Anderson case. Finally, Colorado Solicitor General Shannon Stevenson argued for her state, in support of the Anderson plaintiffs.

What will the Supreme Court do? Based on the argument, here are my predictions:

1. Outcome: The Court will answer “yes” to the question presented and rule in favor of Trump, i.e., it will hold him eligible to appear on the ballot. The opinion will be written by Chief Justice John Roberts—as it should be, given how consequential it is. And I agree with observers across the ideological spectrum, from Eric Segall to Rick Hasen to Ed Whelan, that it will be a lopsided vote, near-unanimous if not unanimous. I’ll bet on 8-1, with Justice Sonia Sotomayor dissenting—but I wouldn’t be shocked if even she can be cajoled into joining a narrow opinion.

2. Timing: I concur with Adam Liptak of the New York Times that they’ll rule promptly. They’ll definitely rule before Super Tuesday on March 5, when Colorado and 14 other states hold their presidential primaries, but they’ll probably rule even earlier. As noted by Liptak, in Bush v. Gore they ruled the day after argument.

3. Reasoning: I previously predicted that the Court would offer multiple grounds for keeping Trump on the ballot, in a “belt and suspenders” approach that would leave no room for doubt on the final outcome. But now I’m not so sure there will be five votes for any rationale except “Section Three of the Fourteenth Amendment is not self-executing.”

On that note, let’s now turn to the three main contentions raised by Jonathan Mitchell on behalf of Donald Trump:

1. Section Three of the Fourteenth Amendment is not “self-executing”—although interestingly enough, Mitchell doesn’t like this framing of the argument. A better formulation might be, “In the absence of action by Congress, as provided for in Section Five, an individual state lacks the power to bar a candidate for federal office from the ballot.” Here there has been no such action—Congress passed a law to enforce Section Three, the Enforcement Act of 1870, but it was repealed in 1948 (for unclear reasons)—so Colorado can’t act.

2. The president is not an “officer of the United States” within the meaning of Section Three. So the provision doesn’t apply to Trump as a former president, and he’s not barred from the ballot. (This is distinct from the argument that the presidency is not an office covered by Section Three, but Mitchell explained at argument that while Trump does take that position, he relies more heavily on the “not an officer” point rather than the “not an office” point.)

3. Section Three, which is a bar on “hold[ing]” office, cannot prevent a candidate from running for office. This might seem like an unpersuasive, hypertechnical argument, but check out this amicus brief filed by former U.S. solicitor general Noel Francisco and his Jones Day colleague John Gore. The argument is that reading Section Three as a bar on running amounts to moving up the relevant date from the holding of office. It also doesn’t give Congress the chance to, “by a vote of two-thirds of each House, remove such disability”—as Section Three explicitly contemplates. This violates U.S. Term Limits, Inc. v. Thornton, in which the Court held that individual states can’t adopt additional qualifications for federal office beyond those set forth in the text of the Constitution. (Thornton involved state-by-state efforts to impose term limits for federal officeholders, specifically, members of the U.S. Congress.)

Based on the questions and comments from the justices at oral argument—which often shed light on how they’ll ultimately rule, even if they sometimes surprise us—there appear to be at least seven to eight votes in favor of the argument that Section Three isn’t self-executing, i.e., it can’t be used as a sword to lop off a candidate from the ballot.

There seemed to be interest from some justices in the other two contentions; call them “officer-curious,” if you will. Based on the argument, I couldn’t “count to five” for either point, but that doesn’t rule out the possibility of either or both winding up as a holding. Chief Justice Roberts probably won’t raise either in the first draft of his opinion, but other justices will draft and circulate concurrences on these points—and if they’re persuasive enough, they might become the position of the Court.

So those are my thoughts. What do you predict, in terms of outcome, timing, and reasoning? Please share your views in the comments of this Notice & Comment (N&C) post, where I tee up a topic for my audience and ask y’all to discuss.

As usual for N&C posts, comments are open to all readers, not just paid subscribers. Thanks!

[UPDATE (2/11/2024, 8:03 p.m.): My latest thoughts on Trump v. Anderson appear in the new installment of Judicial Notice. I’m now thinking it’s more likely that the Court will offer multiple rationales for its ruling, including at least one that is substantive as opposed to merely procedural. But we shall see.]

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