I 100% believe you’re earnest, David, but must attorneys build interpretive mountains out of linguistic molehills?
The Amendment was created to be understood by the people it’s designed to protect, not to be parsed by lawyers to ensure an outcome that is unjust and, frankly, cowardly.
Let’s just say the truth aloud: Donald Trump tried to overturn the 2020 election in a number of ways, one of which included violence and resulted in the death of a number of American citizens. And America will do nothing about it.
The Fire Next Time:
“A civilization is not destroyed by wicked people; it is not necessary that people be wicked but only that they be spineless.”
The Supreme Court will disguise its spineless decision as righteous.
As James Baldwin told Esquire in 1968:
“All that can save you now is your confrontation with your own history….Your history has led you to this moment, and you can only begin to change yourself and save yourself by looking at what you are doing in the name of your history.”
He should not be allowed the opportunity to be President again. This is not that hard.
9/0 against Colorado. I am a former member of the Manhattan DA’s Office — Appeals Bureau for 3 years — and thought the COLO attys did a C/C+ job, at best. As much as I loathe Trump, I thought his atty did a very good job. Saw his openings, saw the jiujitsu move to get back to his line of reasoning, and took it. Very well prepared. Of course, the court was already likely to rule in his favor, but after listening to the argument, I go from a 6/3 outcome to 9/0. Alas.
Good analysis David. I was surprised at Kagan's attrACTION TO THE "NOT SELF-EXECUTING FOR STATES" argument. I think 9-0 in result, with concurrences. I published on the case in January, suggesting that it is not yet "ripe" under the plain meaning of "hold."
Well David, since you asked, this is what I wrote in the Verdict on October 20, 2023
Last month in the Atlantic, Harvard Law Professor Emeritus Laurence Tribe and former federal Circuit Judge J. Michael Luttig argued that Donald Trump is disqualified from running for president pursuant to Section 3 of the 14th Amendment. Having concluded that Trump participated in an attempt to overthrow the election, they assert that disqualification is automatic and requires no conviction for insurrection, rebellion, or aiding the enemies of the United States. As a consequence, state officials are presently empowered to refuse to permit Trump to run in the primaries, and if he is selected to be the Republican candidate for president, deny him a place on the ballot for the general election.
While I believe their analysis is flawed, assuming that it is correct, they fail to address a fundamental question. The United States Supreme Court will make the ultimate determination whether Section 3 is self-executing, that is, whether a criminal conviction is a precondition to disqualification or whether state officials can make that determination on their own. What if the Supreme Court holds that Section 3 is self-executing, but that it is up to each individual state to determine whether Trump can be on the ballot? What then?
Tribe and Luttig draw heavily on the analysis of Section 3 by two highly regarded conservative law professors, William Baude and Michael Stokes Paulsen that is contained in a law review article to be published next year in the University of Pennsylvania Law Review. Baude and Paulsen contend that Section 3 is crystal clear and means precisely what it says: “No person shall … hold any office … under the United States… [who] shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Although Trump has not been convicted of insurrection, rebellion, or aiding an enemy of the United States, they say that doesn’t matter, that there is sufficient evidence of his culpability for those acts in the public domain, and that because the language of Section 3 is clear, it must be applied without consideration of the consequence of their interpretation. But what if the consequences of their argument are months of civil disorder and violence. Tribe and Luttig brush this concern aside, saying:
“The process that will play out over the coming year could give rise to momentary social unrest and even violence.”
“Momentary?” This is magical thinking born from their failure to consider the actual consequences of a “leave it to the states” decision by the Supreme Court.
By leaving it to the states, there are two possible outcomes. If the Supreme Court were to rely on the concurrence in Bush v. Gore, in which Justice Thomas joined, it is the legislature and not the courts that must decide whether Trump can be on the ballot. Currently, Republicans have control of the legislative and executive branches in 22 states and the Democrats in 17 so it is likely that Trump will be on the ballot in at least 22 states.
What happens if the other 17 states decide that he is disqualified and cannot be on the ballot?
In 2020, 74 million voters from across the United States voted for Trump. How will tens of millions of voters react if they are denied the opportunity to vote in 17 states?
If the Supreme Court leaves the decision to the officials in each state who run the elections, usually the Secretary of State, now held by 34 Republicans, the exact same situation could occur.
But what if the Supreme Court agrees with the proponents of automatic disqualification and hold that Trump cannot run for President at all. Do you believe that 74 million people will accept that?
Forty-one states permit voters to write-in their choice for president. What if 88 million Americans vote for Trump as a write-in candidate, and that based upon those votes, Trump would have won a majority of the electors to the Electoral College? In that case, voters from around the country will seek review before the Supreme Court, and under the majority opinion in Bush v. Gore, the Court may find that the procedure used by the states denied the voters the equal protection of the law and throw the case into the United States House of Representatives. In that event, the proponents of disqualification will have handed Trump what he tried to take by force and stealth, a vote in a Republican dominated House of Representatives.
Of course, there is a possibility that the Supreme Court will hold that Section 3 is not self-executing. That happens to be the correct legal result. Baude and Paulsen spend a majority of their 126 page law review article explaining why Section 3 must be self-executing. Their argument is based on the language used by the drafters of the Amendment and a comparison of Section 3 to other provisions of the Constitution which do not require further legislation by Congress to implement.
In so arguing Baud and Paulsen and later Tribe and Luttig ignore one overriding principle of constitutional interpretation. They do say that it does not matter what the drafters of the 14th Amendment intended, because under textual analysis (which is the guiding principle of constitutional interpretation followed by the conservative wing of the court) all that matters is what the words of the Constitution say. But in so arguing, they ignore a bedrock principle of statutory construction. As Justice Samuel Alito explained in Tennessee Wine & Spirits Retailers Ass'n v. Thomas, 588 U.S. ___ (2019), the Supreme Court will not rely upon a literal reading of a constitutional provision that leads to absurd results. Those who claim that Section 3 is self-executing fail to understand that driving our nation headlong into political chaos and likely civil unrest is just such an absurd result.
These authorities have also engaged in a highly selective reading of the 14th Amendment. It has five sections. Section 1, perhaps the most well-known, was intended to provide protection to former slaves from laws limiting their rights. But it also established the rights of all citizens to due process and equal protection of the law. Section 2 deals with the apportionment of representatives; Section 4, with the national debt. And then there is Section 5, which states: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
Baude and Paulsen dismiss Section 5 on the grounds that other provisions of the 14th Amendment have not required enabling legislation. But so what? None of the provisions they cite can so readily be applied with such devastating consequences.
This issue could have been avoided had the Justice Department’s special prosecutor, Jack Smith, charged Trump with insurrection or rebellion or aiding our enemies, which Congress has made a crime. Despite a recommendation by the House of Representatives’ Jan. 6 Select Committee, Smith chose not to. Had he, there would be no need for the constitutional crisis that would arise from the Tribe and company’s interpretation of the law. If there were a conviction the federal courts would see that it was enforced in every state and the Supreme Court would likely stay out of the fray—and it is a fray we will have if Tribe and company get their way.
1. Quality of the arguments--this is a fool's game. It is never clear whether oral arguments make a difference. It really depends on whether the justices have written a tentative ruling before argument (the practice in California state courts, but not in the Ninth Circuit). And, I have seen praise and criticism of Mitchell's performance. But remember--it is easy to have a good argument when the court is on your side. It is far more difficult to be seen as arguing well when the court is against you. On that point, I thought the attorney for the Colorado voters argued well. We should remember the first Obamacare case in 2012. Don Verrilli argued for the US and was clobbered by numerous justices. But he won in the end.
2. Results oriented jurisprudence--or as the Queen of Hearts put it, "execution first, trial later." The Court had its mind made up. But they have to justify their ruling. So how do they write the opinion?
3. The opinion will not be intellectually honest. The Court will not apply originalism (or will twist it to suit their purposes). For example, if you look at the history of Section 3, there is strong evidence it was self-executing. Several states tried to disqualify ex-Confederates from office without waiting for Congress to act. And state courts did not think disqualification was strictly a federal issue.
4. I am sure textualism will play its part, but in a dishonest way. I suspect the Court will rely on the last section of the 14th Amendment, which gives Congress the power to enforce the law. But nothing in the text of section 3 says anything about Congress having to act first. The history of this period shows Congress thought section 3 could be enforced without a federal statute. In fact, Congress that all sections of the amendment were self-executing.
5. Roberts will write the opinion because he is Chief Justice. A better idea is to follow the tactic used in Planned Parenthood v. Casey--have all members of the majority author the opinion. But if that is not possible, Kagan should write it. She is a better writer and thinker than Roberts. She may also be a better judicial politician. A really great twist would be for Jackson to write it, but that is unlikely. And Sotomayor will write a concurring or dissenting opinion. She may concur in the judgment but not the majority opinion.
6. What will the opinion say? It will take a narrow focus and likely hold Section 3 requires an act of Congress to be enforced. The Court will conclude that election of a president is a national issue and should not be decided by each individual state. Of course, this is not true if you look at the text of the Constitution. The Electoral College gives the states enormous power. But the self-executing argument will be both narrow and appealing to a majority.
7. What should the opinion say? If intellectually and legally honest, it should rule that the president is an "officer", that Section 3 is self-executing, and that states may enforce it. As to whether Trump engaged in "insurrection," the Court could send the case back to Colorado for more fact-finding. Or it could put the case on hold until Trump's indictment for election interference goes to trial.
The Supreme Court is a political institution and always has been. Those who expect objective results and reasoning will suffer constant disappointment. As the old saying goes, do not expect justice this side of the grave. And I might add, never expect it from the Supreme Court.
David, if this provision isn't applicable to Trump's attempted coup on January 6th, then it's not applicable to anyone and it's utterly meaningless. I can't imagine that it was intended to be toothless like that. There's no one else in the history of this country who deserves to be disqualified more than Trump for his actions - this is what the drafters of the provision were referring to. Calling it not "self-executing" makes no sense - does that mean if Congress doesn't ratify the 14th amendment (what, annually?), it's invalid as it's not "self-executing"? Since elections are set up state by state, I have to conclude that a state can determine that a candidate engaged in insurrection (which Trump most certainly did) and kick the candidate off the ballot. It's never happened in the history of this country but neither has Trump. All of this debate normalizes a cult leader who tried to overthrow our government and apparently would have been fine if his incited insurrectionists killed Congresspersons and the Vice President. If it doesn't apply here, it will never apply. The more I read about Germany in the 1930's - this is how it happens.
Contrarily, I don't think Mitchell was great. I just don't think he faced an especially hot bench. His position will triumph --- when even Jackson seems strongly opposed to affirming Colorado, how could it not - but I don't think by any means that he "won" this so much as the respondents lost it.
Monday morning quaterbacking for sure, but I do wonder how things would have transpired if Luttig or Larry Tribe argued the case on behalf of Colorado.
I am responding late to your excellent post re the Trump v Anderson argument and so will confine myself to three points.
1. You have articulated the best version of the key question at issue as framed by the justices themselves, “In the absence of action by Congress, as provided for in Section Five, [does] an individual state lack the power to bar a candidate for federal office from the ballot?” This is different from the question as framed by Trump’s attorneys, who want a maximalist reading of Griffin’s Case – under which Section 3 can never be used to disqualify anyone from any state or federal office unless Congress first enacts enabling legislation. I doubt the Court will rule so broadly. Even Justice Thomas seemed comfortable with the notion that states historically have applied Section 3 to disqualify individuals state office. And Justice Kagen was deeply concerned by the prospect that a single House of Congress could, by voting down enabling legislation with a simple majority, effectively convey the same amnesty that, under Section 5, requires a 3/4s majority in both Houses.
2. A week before oral argument I wrote an article, posted to Law360 https://www.law360.com/articles/1791376 , suggesting that the Court could (a) reject the Griffin’s Case holding that Section 3 is inoperative absent Congressional enabling legislation; but (b) distill from Griffin’s Case a due process requirement justifying a ruling in favor of Trump. I wrote, “The Supreme Court could conclude that – for the unique offices of President and Vice President – due process demands that any claim of disqualification be resolved through nationally-applicable, congressionally-mandated procedures.” I also noted, “It could determine that, even with Supreme Court review as a check, it is not fair for a state-court trial judge applying state-court procedures to rule on whether an individual is disqualified from serving as the President – a nationwide office subject to a nationwide election.”
3. Justice Kagan’s first question to Anderson’s attorney focused on the problem of using localized state-court proceedings to resolve the national question of presidential Section 3 disqualification. Other justices also expressed concern about this problem. But, as you note, due process issues did not seem play much of a role in how the justices are thinking about the case. So, despite the questions concerning the distinction between state-wide and national elections, I expect the Court to issue an opinion focusing on the distinction between state and federal offices. The opinion will leave states free to use state-procedures and state-courts to apply Section 3 in disqualifying insurrectionists from state office; will expressly bar states from applying Section 3 against presidential candidates without congressional authorization; and will effectively bar states from applying Section 3 against candidates for the House or the Senate without congressional authorization.
As I read through some of the comments here and reflect on what might be going through the minds of justices of the Supreme Court, I am reminded of Judge Richard Posner and his characterization of how judges decide cases. This is how Harvard University Press - the publisher of his book, How Judges Think - characterizes the book and its author: "A distinguished and experienced appellate court judge, Richard A. Posner offers in this new book a unique and, to orthodox legal thinkers, a startling perspective on how judges and justices decide cases. When conventional legal materials enable judges to ascertain the true facts of a case and apply clear pre-existing legal rules to them, Posner argues, they do so straightforwardly; that is the domain of legalist reasoning. However, in non-routine cases, the conventional materials run out and judges are on their own, navigating uncharted seas with equipment consisting of experience, emotions, and often unconscious beliefs. In doing so, they take on a legislative role, though one that is confined by internal and external constraints, such as professional ethics, opinions of respected colleagues, and limitations imposed by other branches of government on freewheeling judicial discretion. Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term. In that open area, most American judges are legal pragmatists. Legal pragmatism is forward-looking and policy-based. It focuses on the consequences of a decision in both the short and the long term, rather than on its antecedent logic. Legal pragmatism so understood is really just a form of ordinary practical reasoning, rather than some special kind of legal reasoning." To me, the most important line of that excerpt is: "Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term." Here, the political considerations are obvious - the idea of disenfranchising millions of voters from voting for a candidate of their choice is likely to be deeply unpalatable to the justices, even Justice Sotomayor. Another issue - and one I am disappointed to see that commentators from the other side aren't noting here - is the real possibility that Republican Secretaries of State or Republican judges would disqualify the Democratic candidate for President from running for office in some states. (If you think that's impossible, I would point out that Kris Kobach served as the Secretary of State in Kansas for 8 years ; https://ag.ks.gov/about-the-office/ag-kris-kobach). As Justice Breyer would often say during his oral argument questioning, "what's good for the goose is good for the gander." - Here, rather than having states competing to disqualify candidates that they don't like, we need to trust the people to make the decision.
I wonder if I'm missing something obvious. But if the court concludes that the states can't enforce section 3 without authorization from Congress, does it necessarily follow that federal courts can't enforce section 3 without authorization from Congress? Or could federal courts' authority still be an open question after this case is decided? I ask in part because some of the consensus driving the point that states can't enforce without a statute seemed to be driven by things like (1) it's really a national thing, and (2) the 14th amendment is all about limiting states, and (3) chaos ensues if it's state-by-state. But none of those, except maybe the latter depending on how we feel about nationwide injunctions, seem to apply to federal courts.
I heard several justices express concern about the “due process “ Trump may have been provided,or not. This point might be integrated into the reasoning behind finding against self execution or maybe even in a concurrence.
I 100% believe you’re earnest, David, but must attorneys build interpretive mountains out of linguistic molehills?
The Amendment was created to be understood by the people it’s designed to protect, not to be parsed by lawyers to ensure an outcome that is unjust and, frankly, cowardly.
Let’s just say the truth aloud: Donald Trump tried to overturn the 2020 election in a number of ways, one of which included violence and resulted in the death of a number of American citizens. And America will do nothing about it.
The Fire Next Time:
“A civilization is not destroyed by wicked people; it is not necessary that people be wicked but only that they be spineless.”
The Supreme Court will disguise its spineless decision as righteous.
As James Baldwin told Esquire in 1968:
“All that can save you now is your confrontation with your own history….Your history has led you to this moment, and you can only begin to change yourself and save yourself by looking at what you are doing in the name of your history.”
He should not be allowed the opportunity to be President again. This is not that hard.
9/0 against Colorado. I am a former member of the Manhattan DA’s Office — Appeals Bureau for 3 years — and thought the COLO attys did a C/C+ job, at best. As much as I loathe Trump, I thought his atty did a very good job. Saw his openings, saw the jiujitsu move to get back to his line of reasoning, and took it. Very well prepared. Of course, the court was already likely to rule in his favor, but after listening to the argument, I go from a 6/3 outcome to 9/0. Alas.
A very dark day for American jurisprudence, but your analysis is astute and probably right
Fabulous analysis… longtime follower of yours and this might be my favorite piece you’ve ever done. Got my old law school analysis brain going!
Good analysis David. I was surprised at Kagan's attrACTION TO THE "NOT SELF-EXECUTING FOR STATES" argument. I think 9-0 in result, with concurrences. I published on the case in January, suggesting that it is not yet "ripe" under the plain meaning of "hold."
Similar to Francisco's amicus brief I guess. https://www.law.com/therecorder/2024/01/18/the-plain-language-path-for-the-court-to-rule-for-now-on-trumps-disqualification/
(I think this link is free to read if you register your email. And I don't much like the photo -- one never knows what photo they will use....)
I predict Prof. Amar had to do serious deep breathing exercises while listening to the oral argument.
Well David, since you asked, this is what I wrote in the Verdict on October 20, 2023
Last month in the Atlantic, Harvard Law Professor Emeritus Laurence Tribe and former federal Circuit Judge J. Michael Luttig argued that Donald Trump is disqualified from running for president pursuant to Section 3 of the 14th Amendment. Having concluded that Trump participated in an attempt to overthrow the election, they assert that disqualification is automatic and requires no conviction for insurrection, rebellion, or aiding the enemies of the United States. As a consequence, state officials are presently empowered to refuse to permit Trump to run in the primaries, and if he is selected to be the Republican candidate for president, deny him a place on the ballot for the general election.
While I believe their analysis is flawed, assuming that it is correct, they fail to address a fundamental question. The United States Supreme Court will make the ultimate determination whether Section 3 is self-executing, that is, whether a criminal conviction is a precondition to disqualification or whether state officials can make that determination on their own. What if the Supreme Court holds that Section 3 is self-executing, but that it is up to each individual state to determine whether Trump can be on the ballot? What then?
Tribe and Luttig draw heavily on the analysis of Section 3 by two highly regarded conservative law professors, William Baude and Michael Stokes Paulsen that is contained in a law review article to be published next year in the University of Pennsylvania Law Review. Baude and Paulsen contend that Section 3 is crystal clear and means precisely what it says: “No person shall … hold any office … under the United States… [who] shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
Although Trump has not been convicted of insurrection, rebellion, or aiding an enemy of the United States, they say that doesn’t matter, that there is sufficient evidence of his culpability for those acts in the public domain, and that because the language of Section 3 is clear, it must be applied without consideration of the consequence of their interpretation. But what if the consequences of their argument are months of civil disorder and violence. Tribe and Luttig brush this concern aside, saying:
“The process that will play out over the coming year could give rise to momentary social unrest and even violence.”
“Momentary?” This is magical thinking born from their failure to consider the actual consequences of a “leave it to the states” decision by the Supreme Court.
By leaving it to the states, there are two possible outcomes. If the Supreme Court were to rely on the concurrence in Bush v. Gore, in which Justice Thomas joined, it is the legislature and not the courts that must decide whether Trump can be on the ballot. Currently, Republicans have control of the legislative and executive branches in 22 states and the Democrats in 17 so it is likely that Trump will be on the ballot in at least 22 states.
What happens if the other 17 states decide that he is disqualified and cannot be on the ballot?
In 2020, 74 million voters from across the United States voted for Trump. How will tens of millions of voters react if they are denied the opportunity to vote in 17 states?
If the Supreme Court leaves the decision to the officials in each state who run the elections, usually the Secretary of State, now held by 34 Republicans, the exact same situation could occur.
But what if the Supreme Court agrees with the proponents of automatic disqualification and hold that Trump cannot run for President at all. Do you believe that 74 million people will accept that?
Forty-one states permit voters to write-in their choice for president. What if 88 million Americans vote for Trump as a write-in candidate, and that based upon those votes, Trump would have won a majority of the electors to the Electoral College? In that case, voters from around the country will seek review before the Supreme Court, and under the majority opinion in Bush v. Gore, the Court may find that the procedure used by the states denied the voters the equal protection of the law and throw the case into the United States House of Representatives. In that event, the proponents of disqualification will have handed Trump what he tried to take by force and stealth, a vote in a Republican dominated House of Representatives.
Of course, there is a possibility that the Supreme Court will hold that Section 3 is not self-executing. That happens to be the correct legal result. Baude and Paulsen spend a majority of their 126 page law review article explaining why Section 3 must be self-executing. Their argument is based on the language used by the drafters of the Amendment and a comparison of Section 3 to other provisions of the Constitution which do not require further legislation by Congress to implement.
In so arguing Baud and Paulsen and later Tribe and Luttig ignore one overriding principle of constitutional interpretation. They do say that it does not matter what the drafters of the 14th Amendment intended, because under textual analysis (which is the guiding principle of constitutional interpretation followed by the conservative wing of the court) all that matters is what the words of the Constitution say. But in so arguing, they ignore a bedrock principle of statutory construction. As Justice Samuel Alito explained in Tennessee Wine & Spirits Retailers Ass'n v. Thomas, 588 U.S. ___ (2019), the Supreme Court will not rely upon a literal reading of a constitutional provision that leads to absurd results. Those who claim that Section 3 is self-executing fail to understand that driving our nation headlong into political chaos and likely civil unrest is just such an absurd result.
These authorities have also engaged in a highly selective reading of the 14th Amendment. It has five sections. Section 1, perhaps the most well-known, was intended to provide protection to former slaves from laws limiting their rights. But it also established the rights of all citizens to due process and equal protection of the law. Section 2 deals with the apportionment of representatives; Section 4, with the national debt. And then there is Section 5, which states: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
Baude and Paulsen dismiss Section 5 on the grounds that other provisions of the 14th Amendment have not required enabling legislation. But so what? None of the provisions they cite can so readily be applied with such devastating consequences.
This issue could have been avoided had the Justice Department’s special prosecutor, Jack Smith, charged Trump with insurrection or rebellion or aiding our enemies, which Congress has made a crime. Despite a recommendation by the House of Representatives’ Jan. 6 Select Committee, Smith chose not to. Had he, there would be no need for the constitutional crisis that would arise from the Tribe and company’s interpretation of the law. If there were a conviction the federal courts would see that it was enforced in every state and the Supreme Court would likely stay out of the fray—and it is a fray we will have if Tribe and company get their way.
Just sayin...
I would guess 9-0. Mitchell was superb. He had a conversation with the court, rather than lecturing them.
Here goes:
1. Quality of the arguments--this is a fool's game. It is never clear whether oral arguments make a difference. It really depends on whether the justices have written a tentative ruling before argument (the practice in California state courts, but not in the Ninth Circuit). And, I have seen praise and criticism of Mitchell's performance. But remember--it is easy to have a good argument when the court is on your side. It is far more difficult to be seen as arguing well when the court is against you. On that point, I thought the attorney for the Colorado voters argued well. We should remember the first Obamacare case in 2012. Don Verrilli argued for the US and was clobbered by numerous justices. But he won in the end.
2. Results oriented jurisprudence--or as the Queen of Hearts put it, "execution first, trial later." The Court had its mind made up. But they have to justify their ruling. So how do they write the opinion?
3. The opinion will not be intellectually honest. The Court will not apply originalism (or will twist it to suit their purposes). For example, if you look at the history of Section 3, there is strong evidence it was self-executing. Several states tried to disqualify ex-Confederates from office without waiting for Congress to act. And state courts did not think disqualification was strictly a federal issue.
4. I am sure textualism will play its part, but in a dishonest way. I suspect the Court will rely on the last section of the 14th Amendment, which gives Congress the power to enforce the law. But nothing in the text of section 3 says anything about Congress having to act first. The history of this period shows Congress thought section 3 could be enforced without a federal statute. In fact, Congress that all sections of the amendment were self-executing.
5. Roberts will write the opinion because he is Chief Justice. A better idea is to follow the tactic used in Planned Parenthood v. Casey--have all members of the majority author the opinion. But if that is not possible, Kagan should write it. She is a better writer and thinker than Roberts. She may also be a better judicial politician. A really great twist would be for Jackson to write it, but that is unlikely. And Sotomayor will write a concurring or dissenting opinion. She may concur in the judgment but not the majority opinion.
6. What will the opinion say? It will take a narrow focus and likely hold Section 3 requires an act of Congress to be enforced. The Court will conclude that election of a president is a national issue and should not be decided by each individual state. Of course, this is not true if you look at the text of the Constitution. The Electoral College gives the states enormous power. But the self-executing argument will be both narrow and appealing to a majority.
7. What should the opinion say? If intellectually and legally honest, it should rule that the president is an "officer", that Section 3 is self-executing, and that states may enforce it. As to whether Trump engaged in "insurrection," the Court could send the case back to Colorado for more fact-finding. Or it could put the case on hold until Trump's indictment for election interference goes to trial.
The Supreme Court is a political institution and always has been. Those who expect objective results and reasoning will suffer constant disappointment. As the old saying goes, do not expect justice this side of the grave. And I might add, never expect it from the Supreme Court.
David, if this provision isn't applicable to Trump's attempted coup on January 6th, then it's not applicable to anyone and it's utterly meaningless. I can't imagine that it was intended to be toothless like that. There's no one else in the history of this country who deserves to be disqualified more than Trump for his actions - this is what the drafters of the provision were referring to. Calling it not "self-executing" makes no sense - does that mean if Congress doesn't ratify the 14th amendment (what, annually?), it's invalid as it's not "self-executing"? Since elections are set up state by state, I have to conclude that a state can determine that a candidate engaged in insurrection (which Trump most certainly did) and kick the candidate off the ballot. It's never happened in the history of this country but neither has Trump. All of this debate normalizes a cult leader who tried to overthrow our government and apparently would have been fine if his incited insurrectionists killed Congresspersons and the Vice President. If it doesn't apply here, it will never apply. The more I read about Germany in the 1930's - this is how it happens.
9-0 or 8-1 (Sotomayor).
Contrarily, I don't think Mitchell was great. I just don't think he faced an especially hot bench. His position will triumph --- when even Jackson seems strongly opposed to affirming Colorado, how could it not - but I don't think by any means that he "won" this so much as the respondents lost it.
Monday morning quaterbacking for sure, but I do wonder how things would have transpired if Luttig or Larry Tribe argued the case on behalf of Colorado.
David,
I am responding late to your excellent post re the Trump v Anderson argument and so will confine myself to three points.
1. You have articulated the best version of the key question at issue as framed by the justices themselves, “In the absence of action by Congress, as provided for in Section Five, [does] an individual state lack the power to bar a candidate for federal office from the ballot?” This is different from the question as framed by Trump’s attorneys, who want a maximalist reading of Griffin’s Case – under which Section 3 can never be used to disqualify anyone from any state or federal office unless Congress first enacts enabling legislation. I doubt the Court will rule so broadly. Even Justice Thomas seemed comfortable with the notion that states historically have applied Section 3 to disqualify individuals state office. And Justice Kagen was deeply concerned by the prospect that a single House of Congress could, by voting down enabling legislation with a simple majority, effectively convey the same amnesty that, under Section 5, requires a 3/4s majority in both Houses.
2. A week before oral argument I wrote an article, posted to Law360 https://www.law360.com/articles/1791376 , suggesting that the Court could (a) reject the Griffin’s Case holding that Section 3 is inoperative absent Congressional enabling legislation; but (b) distill from Griffin’s Case a due process requirement justifying a ruling in favor of Trump. I wrote, “The Supreme Court could conclude that – for the unique offices of President and Vice President – due process demands that any claim of disqualification be resolved through nationally-applicable, congressionally-mandated procedures.” I also noted, “It could determine that, even with Supreme Court review as a check, it is not fair for a state-court trial judge applying state-court procedures to rule on whether an individual is disqualified from serving as the President – a nationwide office subject to a nationwide election.”
3. Justice Kagan’s first question to Anderson’s attorney focused on the problem of using localized state-court proceedings to resolve the national question of presidential Section 3 disqualification. Other justices also expressed concern about this problem. But, as you note, due process issues did not seem play much of a role in how the justices are thinking about the case. So, despite the questions concerning the distinction between state-wide and national elections, I expect the Court to issue an opinion focusing on the distinction between state and federal offices. The opinion will leave states free to use state-procedures and state-courts to apply Section 3 in disqualifying insurrectionists from state office; will expressly bar states from applying Section 3 against presidential candidates without congressional authorization; and will effectively bar states from applying Section 3 against candidates for the House or the Senate without congressional authorization.
As I read through some of the comments here and reflect on what might be going through the minds of justices of the Supreme Court, I am reminded of Judge Richard Posner and his characterization of how judges decide cases. This is how Harvard University Press - the publisher of his book, How Judges Think - characterizes the book and its author: "A distinguished and experienced appellate court judge, Richard A. Posner offers in this new book a unique and, to orthodox legal thinkers, a startling perspective on how judges and justices decide cases. When conventional legal materials enable judges to ascertain the true facts of a case and apply clear pre-existing legal rules to them, Posner argues, they do so straightforwardly; that is the domain of legalist reasoning. However, in non-routine cases, the conventional materials run out and judges are on their own, navigating uncharted seas with equipment consisting of experience, emotions, and often unconscious beliefs. In doing so, they take on a legislative role, though one that is confined by internal and external constraints, such as professional ethics, opinions of respected colleagues, and limitations imposed by other branches of government on freewheeling judicial discretion. Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term. In that open area, most American judges are legal pragmatists. Legal pragmatism is forward-looking and policy-based. It focuses on the consequences of a decision in both the short and the long term, rather than on its antecedent logic. Legal pragmatism so understood is really just a form of ordinary practical reasoning, rather than some special kind of legal reasoning." To me, the most important line of that excerpt is: "Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term." Here, the political considerations are obvious - the idea of disenfranchising millions of voters from voting for a candidate of their choice is likely to be deeply unpalatable to the justices, even Justice Sotomayor. Another issue - and one I am disappointed to see that commentators from the other side aren't noting here - is the real possibility that Republican Secretaries of State or Republican judges would disqualify the Democratic candidate for President from running for office in some states. (If you think that's impossible, I would point out that Kris Kobach served as the Secretary of State in Kansas for 8 years ; https://ag.ks.gov/about-the-office/ag-kris-kobach). As Justice Breyer would often say during his oral argument questioning, "what's good for the goose is good for the gander." - Here, rather than having states competing to disqualify candidates that they don't like, we need to trust the people to make the decision.
I wonder if I'm missing something obvious. But if the court concludes that the states can't enforce section 3 without authorization from Congress, does it necessarily follow that federal courts can't enforce section 3 without authorization from Congress? Or could federal courts' authority still be an open question after this case is decided? I ask in part because some of the consensus driving the point that states can't enforce without a statute seemed to be driven by things like (1) it's really a national thing, and (2) the 14th amendment is all about limiting states, and (3) chaos ensues if it's state-by-state. But none of those, except maybe the latter depending on how we feel about nationwide injunctions, seem to apply to federal courts.
I heard several justices express concern about the “due process “ Trump may have been provided,or not. This point might be integrated into the reasoning behind finding against self execution or maybe even in a concurrence.