After quick review of an order about admissions at West Point and two new unanimous opinions, we spend almost all of the episode breaking down last week's oral arguments in Trump v. Anderson. What excuse will the Supreme Court use to keep Colorado from disqualifying Trump from the ballot?
After quick review of an order about admissions at West Point and two new unanimous opinions, we spend almost all of the episode breaking down last week's oral arguments in Trump v. Anderson. What excuse will the Supreme Court use to keep Colorado from disqualifying Trump from the ballot?
[Divided Argument theme]
Will: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, it's been a little while, Will, but we did need to weigh in at this point, because the court has had its argument in Trump v. Anderson, which is the case about President Trump's eligibility for the presidency under Section 3, which involves a legal issue that I think is near and dear to your heart.
Will: Yeah, it's funny. When we started writing this article about Section 3 of the 14th Amendment and its possible applicability to modern insurrections and to the president, we were hoping some people would read it and weren't necessarily predicting it would be the subject of Supreme Court argument less than six months later. And I confess, I think at this point, it is possible that the court is going to beat us to print. [Dan laughs] We have one more round of page proofs in the law review to go, and I think we're coming out in print sometime in March.
Dan: Will you do any edits to reflect that?
Will: No.
Dan: Okay.
Will: No, I mean, in general, we made the choice, once the article had sort of gone viral on SSRN, not to try to become a moving target. So, we're making edits to make the piece read smoother and make sure all the cites are right, but we'll not like track the ongoing litigation, especially now as it happens each time. So, we do have like a master footnote saying we're not trying to track that stuff. I would not be surprised if we wrote another piece, depending on what happens. But this piece is going to sort of stand as it is.
Dan: All right. Well, we obviously want to talk about that. Maybe let's just quickly acknowledge some stuff that's happened since last we recorded without wasting too much time on it.
Will: Sure.
Dan: So, we have this order in a follow-on case from the Harvard and UNC affirmative action cases. This case is Students for Fair Admissions v. United States Military Academy at West Point, which is a case that is trying to get the affirmative action policies at US Military Academy declared unconstitutional.
Will: These are preserved by a footnote in the original Students for Fair Admissions case-- or in the original Students for Fair Admissions case, the court expressed no opinion about whether or not this reasoning would apply to West Point. Something actually that the Solicitor General Elizabeth Prelogar had sort of explicitly asked the court to do at argument. "If we lose, please give us a chance to save West Point, to save the military academies." And so now, we're going to find out if they're saved.
Dan: Yeah. And the plaintiffs here had come to the court seeking a writ of injunction pending appeal, which is kind of a form of extraordinary relief. I think in theory, that should be hard. It's supposed to be harder to get than a stay of a lower court order. So basically, they're asking the court to actually give the relief, issue the injunction saying, "West Point can't do this," while they continue to litigate it in the lower courts.
Will: Yes, this used to be a form of extraordinary relief. Now, it's a form of ordinary shadow docket relief. But at least in principle, maybe it's harder to get. And the court denied it and just as we were getting ready to prep the episode, I was struggling to find this order, because it's not in the opinions related to orders section of the court's website. It's in the stone-cold orders without opinions portion of the website.
Dan: Which by the way just makes this very confusing. Maybe they could consolidate these things.
Will: They should have one part of the website that says shadow docket, big letters.
Dan: [chuckles]
Will: But it's interesting because this order--
Dan: Registered trademark symbol.
Will: [laughs] I will happily cede the trademark to the court if they would be willing to use it. This order is-- they deny the application, but then there's an interesting sentence that is not usually contained in these orders.
Dan: Yeah. It says, "The record before this court is underdeveloped, and this order should not be construed as expressing any view on the merits of the constitutional question. No noted dissents and no separate opinions." Kind of surprising. You could easily have imagined one of the conservative justices writing a short thing, saying, "This is clearly unconstitutional," but maybe the court has decided, "We really do want to wait and let this have a full argument before we decide the question." Because what's the point of leaving it open in the majority opinion and then just kind of summarily deciding it in a shadow docket posture? Presumably, they want to at least make an effort to seem like they're trying to take it seriously.
Will: Yeah, although they could grant the injunction. They could grant the writ of injunction pending appeal and grant cert, for instance.
Dan: Yeah.
Will: "We're probably going to strike this down too, but we'll let you get a chance." I assume those things about noting your dissent from the order. The risk is you give the impression that there aren't five votes. So, if the court had said, if three Justices, let's call them Alito, Thomas and Gorsuch, had all written separately or had all would, "We would grant the application," then you might think you're going to discourage the plaintiffs. We're going to think, "Oh, we don't want to lose 6-3." So, I take it you say this to encourage them to keep trying. The funny thing is all denials of a writ of injunction pending appeal are not supposed to express a view on the merits [crosstalk] [Dan chuckles] question. That's supposed to be--
Dan: This really, really doesn't express a view.
Will: Well, there's a little bit of expressiveness, right?
Dan: Yeah.
Will: Now they become-- every other time in an extraordinary writ of injunction, I'm like, "Should this one be construed as expressing a view on the merits?"
Dan: Or rather this one does in fact express a view on the merits by virtue of stressing so hard that it doesn't.
Will: Well, there's that too. Right. Yes. The effect of saying they express no view on the merits is to cause us all to think that Students for Fair Admissions has a stronger case than we otherwise would have on the merits.
Dan: Well, I imagine we will find out in the months to come.
Will: The Solicitor General Prelogar came to the law school actually a couple of weeks ago, gave one of our big lectures and talked about this. The question of what it's like to be the SG, arguing before a court that you mostly lose in front of sort of was one of the main topics. And these points about how still matters a lot what the court says came up. But anyway, what else has the court done to us, Dan, or for us?
Dan: A couple opinions. Not the most exciting opinions, but now we're in February and they've released three opinions for the whole term.
Will: Uh-huh.
Dan: It's a little slow.
Will: They've gotten me so accustomed to their slow pace, I now forget what's slow and what's normal anymore. But I think this is slow.
Dan: Yeah. I mean, compared to last term, I guess it's actually about the same compared to last term. I have this sense that they used to do a little bit more. The two terms before, they had released more than this. Maybe some of these are shadow docket opinions, but they had released a decent chunk. But also, the total volume of cases seems to continue to go down.
Will: Right. Well, two terms before, they had handled S.B. 8 by this time, so that was a lot more than they'd given us.
Dan: Yeah.
Will: Yeah. So, we got opinions in Department of Agriculture Rural Development Rural Housing Service v. Kirtz, a case about whether the Fair Credit Reporting Act outweighs federal sovereign immunity, and the opinion of Justice Gorsuch holds that it does. And Murray v. UBS Securities, maybe sort of interesting, important case about the scope of whistleblower protections under Sarbanes-Oxley for people who are fired from being a whistleblower and what kind of causation or what kind of intent you have to prove. A unanimous opinion by Justice Sotomayor with a concurring opinion by Justice Alito, joined by Justice Barrett. But I don't know that either of them merit our time today unless there's something in there you really want to talk about.
Dan: I don't think so. I listened to the arguments in both of these, and they didn't get me super, super excited. The Murray v. UBS Securities argument was interesting because it just seemed like there was a lot of kind of basic confusion about how the law should work, and I ended up finding it kind of confusing. But I don't have any great observations coming out of that.
Will: My observation is the opinion also found it confusing. They're reversing a Second Circuit opinion, and there is some discussion in the opinion and in the concurrence about what exactly is the Second Circuit rule they're overturning. And maybe depending on how you read it, maybe they don't disagree that much, but--
Dan: All right, well, why don't we just cut to the chase?
Will: All right. So last week, Thursday, we're currently recording this on the following Monday, the Supreme Court heard oral argument in Donald J. Trump v. Norma Anderson, which is reviewing the Colorado Supreme Court's decision 4-3 that Donald Trump is not qualified to be on the presidential primary ballot in Colorado. I know we talked about this case once sort of to preview it on our last episode, but now the Justices have had at it. What did you think, Dan? How are my chances?
Dan: I think the overwhelming consensus is that the court is not going to do what you were hoping they would, declare former President Trump ineligible for the presidency. That became very clear, I think, in the first argument for the respondent’s side. So, for the private parties who had gone and tried to get Trump off the ballot, who won below, they were represented by a lawyer named Jason Murray, who's actually a former clerk for Justice Gorsuch. And the questions he received were fast and furious, kind of blistering, and revealed fairly deep skepticism of his position. And I think it's possible that this is going to be a unanimous opinion. I think that it's likely that it's not going to be an opinion that divides Democrats versus Republicans. Maybe you could imagine it being 8-1 or something like that. But I think that the Trump team, represented by Jonathan Mitchell, that famously evil legal genius, according to some, is going to prevail in this case. Do you disagree with that account?
Will: That seems more likely than not too right. I do have the caveat that it's always been the case that-- this is not the argument that starts where a lot of the Justice priors are. There is always a question about if they sit down to write it, what happens? [crosstalk]
Dan: [crosstalk] -if they sit down to reread your article.
Will: Well, one hopes. And if they sit down to write it and try to coalesce on a reason, and they really can’t coalesce on a reason they’re all happy with, does that change their calculus in some way? Do they take one of several off ramps? I will say the day after the argument, my coauthor, Mike Paulsen, and I, as well as Josh Blackman, the author of our longest critique, all flew to San Diego for the Originalism Works-in-Progress Conference at University of San Diego, the biggest deal in originalist legal scholarship, and we both presented our papers. And I felt like to the room full of originalist scholars, we did pretty well, came away with a lot of people convinced on a lot of the points, but they’re not the Supreme Court, and we were not the ones arguing the case.
Do you have a view about how the court is going to rule? Because one of the interesting things about this, as you like to point out, there are several different issues, and to affirm the Colorado Supreme Court, you have to agree on all of them.
Dan: Yeah.
Will: It’s maybe what makes it a tough argument. There’s this question of whether the president is an officer of the United States? I guess there's a question whether Trump engaged in an insurrection. There's a question about sort of how Section 3 should be enforced. And there are some sort of narrower questions of election law as well.
Dan: Yeah. So, a lot of possibilities. It seemed like there was less interest in the arguments about whether the president qualifies by virtue of being an officer or-- remind me that-- give me the language-- [crosstalk]
Will: Officer of the United States.
Dan: Yeah. Officer of the United States. Whether the plain language of the amendment encompasses the president rather than a whole range of other federal offices, but not the presidency. I'd say that there seemed to be less interest in that argument. I think that some people had sort of thought, "Oh, this provides a kind of clear off ramp for the court, enables them to say, 'Just take this off the table completely, but not in a way that necessarily makes law for all applications of Section 3.'"
Will: Yeah. That was very much the lead argument in Trump’s brief. That's the argument that Steve Calabresi and Gary Lawson and Josh Blackman and Seth Barrett Tillman and a bunch of other people maybe have most emphatically coalesced around, although I think eventually they've gone for other arguments as well. So, that seemed like the kind of the leading argument.
Dan: Yeah.
Will: [crosstalk] -that was the argument that the Colorado district court found all the facts adverse to Trump but then sort of-- So, that seemed like the leading argument. But it was interesting, Justice Jackson seemed to be the most enthusiastic proponent of that argument. Did you--?
Dan: Yeah, she asked a bunch of questions about this, why would they have been concerned? The framers of this amendment being concerned about the presidency in particular. And frankly, I didn't find those arguments that she was implicitly making super persuasive. I was trying to figure out why she would want to put emphasis on that point. Maybe if you're looking for pragmatic explanations, maybe it kind of limits the damage of a decision because it applies only to this narrow situation precedent.
Will: Yeah. No, I thought that was weird. I do think it's not the best argument.
Dan: Yeah.
Will: And so, it's interesting that was the one--
Dan: But it seems like that's where the rest of the court thinks it's not the best argument either. And so, it seemed like the more likely ones were some version of the argument that Trump, we won't know whether he's disqualified until he's elected because Congress has the ability to remove the disability. Or maybe this is something that Congress has to enforce with primary legislation that seemed to be floating out there. And I got to say, I didn't totally understand actually Mitchell, the Trump side's lawyer on this point. Did you follow this? There's this case [crosstalk] Griffin’s case. What?
Will: I think I understand his argument but go ahead.
Dan: Yeah. I mean, I understand the argument, but it strikes me as not a very originalist argument. Is that fair?
Will: Yeah.
Dan: So basically, he says there was a time where there was a statute that implemented this, and then there's Griffin's case. Congress ends up repealing the statute somehow in reliance on Griffin's case, which said, you can't go remove a state judge because they were disqualified, and that somehow that reliance on the fact that Congress got rid of that statutory framework and left in place only criminal prohibition and insurrection means that this is no longer self-executing.
Will: Yeah. So basically, there are two ways to make the argument. One is to say the Constitution itself is not self-executing and it can only be enforced by Congress. And that's what Griffin's case says, and that's clearly wrong, and Trump's lawyer didn't really want to defend it. I mean, he did a couple of times say-- he'd say things like, "Well, if you believe Griffin's case is right, then X follows." And then, he would remember to say, "Oh, and of course we believe Griffin's case is right." But in this way that I gather he was crossing his fingers behind his back. So, that's one argument is to say that this result comes from the Constitution. The other argument, as a fed jur. matter you can make, and that I understood him to focus on, was instead to say, even if the Constitution can be enforced by the states, Congress has the power to preempt it if they want to, to say, "We want to be the exclusive ones to enforce this." And even if they don't say that, sometimes we can kind of pretend they said that or read that into their intent, then we should read into the series of statutes Congress enacted, an intent to take over, being the only one to enforce it, in part because Griffin's case is in the background, so that's what they would have thought-- [crosstalk]
Dan: Yeah. Like, they took it over, but then they kind of-- [crosstalk]
Will: Well, okay, can I just describe the actual sequence of events, what you make of these?
Dan: Yeah.
Will: Okay. There are three relevant federal statutes. The first one makes it a crime to engage in insurrection and says, "Anybody who engages insurrection can't hold office under the United States." That statute is enacted before Section 3, before the 14th Amendment. It's enacted by President Lincoln. It's actually the inspiration for Section 3. That's the one that remains in the books. It's part of the second Confiscation Act, which also inspires the Emancipation Proclamation. So, that's statute number one. It's like no insurrection and you're disqualified if you commit insurrection statute. Then, Section 3 is enacted. Then, a couple of years after Section 3, Congress enacts two more statutes. One is a civil provision, quo warranto provision that lets district attorneys bring quo warranto suits to kick out mostly state officers. That statute doesn't apply to the president or members of Congress. And they use some of those. They try to disqualify the Tennessee Supreme Court. They bring quo warranto against them all and stuff like that.
Dan: Who's they?
Will: The federal district attorney in Tennessee.
Dan: Okay.
Will: And then, there's also a criminal provision that says anybody who holds office in violation of Section 3 is guilty of a crime. So, it's not that you have to be convicted of the crime and you're disqualified. It's that if you hold office when you're disqualified, you're committing a crime. All three of those are in the books. Then in 1916, 1917, Congress repeals the criminal provision as part of the codification of the criminal code. It's not like on purpose-- they don't say, "We decided to repeal this," so much as they say, "We're revising and pulling together all the criminal statutes, and this one appears to us to be obsolete. So, I guess we don't need it anymore." So, they get rid of it. And then, the same thing happens to the quo warranto statute in 1948 when they codify the judicial code. They say, "This provision appears to be obsolete. We don't need it anymore." So, they just leave it out of the codification. And in both those cases, there's some legislative history that says, "We don't think Section 3 applies anymore." And so, there's nothing--
Dan: Because everyone from the Civil War is dead.
Will: Or was given amnesty, yeah.
Dan: Yeah, I guess I'm not super persuaded by that, that somehow this kind of complicated sequence of events in which Congress never explicitly says anything in legislation about how this is supposed to be the exclusive or this is preempting or anything that somehow that deprives the continued force of this constitutional provision, I don't find that persuasive.
Will: Yeah, not just that, but preempts, in this case, the state courts and state law wants to enforce this constitutional provision, and they're saying that they can't. It's unconstitutional for the state to do it because Congress's decision in 1948 to repeal a quo warranto statute during the codification of the judicial code implicitly forbade any state from taking any other action to apply the law in the future. [crosstalk]
Dan: Yeah, I don't buy that. I did think there were a couple of other arguments that came up that at least revealed to me kind of real practical problems of the challenger's position, of the plaintiff's position, the people that are trying to take Trump off the ballot. So, one is this, and I want to know what-- I'm sure you have answer to this, which is this is coming up in this case. There had been evidentiary proceedings below, some kind of hearing. And there's some kind of half-hearted argument from Trump that he didn't get full due process below. Doesn't seem like it's a hugely strong argument. But the question then becomes, okay, well, to the extent that this depends on the application of law to facts and it depends on fact finding, what is the court supposed to do if Arizona has a hearing next week and takes witnesses and evidence and everything, and then concludes that Trump did not engage in insurrection and that judgment comes up to the Supreme Court as well? What is the court supposed to do? Is it supposed to just say, "It's the federal system. People can disagree about this"?
Or, and this was kind of-- Murray made this suggestion, which is sort of a fallback, which was rather than apply a differential standard of review to the factual findings, the court could choose to kind of review them more de novo and just settle the factual question.
Will: Yeah, I find this very strange because I think both of those answers are plausible and the courts seemed not to like either of them. So, I do think baseline Article II says the states get to choose how to select their electors. And as far as Article II is concerned, that means the states don't even have to-- they used to just decide who to give their electors to. Colorado used to just say, like, "We're voting for Lincoln." So, I don't think it's that strange, I think different states can make different choices about this, even on the basis of a fighting effect. That's my initial answer as I do think in principle, you can end up with different answers. And the argument the respondents made is not silly.
So, first of all, there is a case or a line of cases that say if there's a big constitutional question at stake, sometimes the Supreme Court will review the so-called factual question de novo. Like, was there actual malice under the New York Times v. Sullivan First Amendment standard? The court has said, "We review that de novo because it's so central to First Amendment." So, it's reasonable for the court to apply the same thing here, and especially in cases coming out of state court, did you know there's no actual legal rule, as far as I can tell, that says you have to review state court findings effect for clear error?
Dan: That's just kind of a background principle that's been assumed?
Will: Yeah, I mean, that's what the federal rules of civil procedures say for trial courts.
Dan: Yeah.
Will: And that's what the Supreme Court would usually prefer to do. And maybe in some cases, there's a state law rule that the state Supreme Court would follow, but I think in principle, the Supreme Court could review them more aggressively if they wanted to. So, if the Supreme Court was for some reason uncomfortable with having multiple fact findings, nothing would stop them from looking into the record and saying, "This is a question on which we will tell you whether President Trump engaged insurrection."
Dan: And in that situation, they would just have to take the record as it was given to them, though. I mean, they're not going to appoint a special master. And one question that was thrown out there was, it's kind of weird because then it kind of depends a little bit on who gets there first, who gets to the court first.
Will: Yeah. I mean, there would be multiple options obviously. They could wait for some of the other state proceedings to develop. There are other state law cases that are currently being held for the court, and the court could order those to go forward, so it gets more of a record. If the whole hypothesis is you're going to treat this unusually, they could supplement the record in some way if they wanted to. But it also wasn't clear-- I mean, it wasn't clear whether anybody thinks this is a case that really turns on the record. Much of what happened at the court below is the obvious public facts. President Trump could have chosen to testify and just gone in and say, "Look, that's not what I intended. Here's what I really intended." And then, maybe we'd have a more typical factual question where you'd have to ask, is he credible or something? But he didn't do that, so that's not an issue here.
Dan: Yeah, I mean, I think that Trump gets some kind of atmospheric points by stressing how there was this left-wing sociology professor that testified about, "Well, what do these coded messages mean? How would they be understood by white nationalist types?" My sense is that didn't actually matter that much in the fact finding, given that so much of this is just based on public statements. And that was the response that Murray made. But it didn't look great for having stuff like that out there, sort of like an evidentiary record that is going to strike kind of conservative Justices as tilted in this way isn't helpful.
Will: Yeah, I mean, it's true. Although it's funny in two respects. I think the main thing the sociology professor was testifying to really was how people were likely to perceive how Trump's supporters were likely to perceive his message. And I don't know that we need a lot of testimony on that because we know how they received it. In his brief, Trump gives these examples of famous statements that were held not to be incitement. Like, the first one I want to get in my sights is LBJ, like they'll be first against the wall when the revolution comes or whatever. But I do think we would think about those statements differently if then somebody had gone and shot LBJ, or somebody said that, and then there was a revolution. We know what events happen immediately after the speech and we just have to decide what to make of that. And people are regularly executed on less process, just like lose a writ of habeas corpus or like major cases, this is our litigation system. So, it's a little weird.
Dan: Yeah. It seems hard for them to point out exactly what process wasn't received other than just sort of gesturing at.
Will: Right. Well, I think in a normal case, the two options of either let the states all decide whether this is true or the US Supreme Court will step in and say whether this is true, normally that exhausts the options the court wants. Either it's happy to leave it to the states or they want to come in and say the right answer. And in this case, they clearly don't want to do either of those things. They neither want the states to say whether this is true, nor do they want to say whether this is true. They would like a rule in which nobody says whether this is true.
Dan: Yeah.
Will: Which is funny. I mean, again [crosstalk] lot.
Dan: Or I guess Congress says whether it's true.
Will: I guess. I'm curious how they think-- I mean, I have a question for you about that.
Dan: Can I just back up something a little bit? Just so the response that you were referring to about how well the challengers can just say, states are allowed to allocate electoral votes however they want. And that this maybe ties into question that Chief Justice Roberts was making, which he says, "Well, what should we say if some other state makes some determination that Biden engaged insurrection? Biden can't be on the ballot?" And so, to the extent that the answer is, states can interpret Section 3 however they want and that can be their basis for taking people off the ballot. Do you have an answer to that, or does it just give states discretion to interpret how they want?
Will: Yeah. Technically, I don't think it's the case that states can interpret Section 3 however they want. I mean, the point is that states don't even have to have Section 3, they can make their own choices as a matter of state law. Now, I think in Colorado, the Colorado constitution, in fact, would not allow Colorado to just put Biden on the ballot. I'm not saying there's a [crosstalk] adequate--
Dan: What do you mean to just put Biden on the ballot?
Will: I think the Colorado--
Dan: He will be on the ballot.
Will: But to put only Biden on the ballot.
Dan: Okay.
Will: I think the Colorado constitution probably requires them to have a presidential election. Even though Article II does not, I think the Colorado constitution probably does. And so, part-- [crosstalk]
Dan: [crosstalk] there’s always RFK Jr.
Will: This is ultimately a matter of the-- [crosstalk]
Dan: Did you watch the Super Bowl?
Will: Half of it.
Dan: Okay. There was an RFK Jr. ad that tried to capitalize on JFK. Didn't go over super well.
Will: [laughs] I'm relieved to hear that. He's not my first choice.
Dan: He's not your guy?
Will: Candidate, yeah.
Dan: He's not the choice of originalists against Trump?
Will: Trump might better than RFK Jr.
Dan: [laughs] Trump got vaccinated.
Will: Even if-- [crosstalk] I approve of that.
Dan: Yeah.
Will: And he launched Operation Warp Speed. He helped me get vaccinated.
Dan: So, just can back up then. I'm trying to understand. So, the argument that Murray is responding to is just saying, "Well, okay, this is going to create disunformity. Different states will make different factual findings, and then we have to defer to them." Your response, as I understood it, was, "Well, states can allocate their electoral votes however they want." But then how much-- does that prove too much? That's what I'm trying to get at.
Will: It might prove too much, but I don't think states can interpret Section 3 however they want. So, I do think that the court might have to review other Section 3 cases if this happens.
Dan: Like, the legal meaning. But what about the factual?
Will: Even the factual obligations. I'm not quite sure what the Biden insurrection is. There's an argument floating around that Kamala Harris committed insurrection by raising money for the Black Lives Matter organization after the Black Lives Matter occupations of Portland and Seattle that I at least understand the structure of. Although I think that turns on legal questions. I'm not even sure I understand the Biden theory, but I got a long voicemail from like a weird, stoned reporter who thinks that Biden-- several long voicemails about how Biden engaged in insurrection because he's voted for the Iraq war, which was obviously illegal, and that was-- Anyway, I'm not sure I understand the theory.
The point is just that-- so the court can review it but this broader atmospheric fear of disuniformity is what seems so strange, just because, in fact, Article II tolerates way more disuniformity than whatever Section 3 introduces to the scene. Yeah, so it's like the last-- I realize the court, we don't do it that way that much as a practical matter anymore. And so, maybe the court has just now forgotten or doesn't like how Article II works. I'm sure that's true of Justice Kagan, but it just seems like that concern is sort of misplaced as an atmospheric manner.
Dan: Yeah. Chief Justice Roberts asked about this, and Murray says, "Well, certainly, your honor, the fact that there are potential frivolous applications of a constitutional provision isn't a reason that would--" and then gets cut off, and Chief Justice says, "Well, no, hold on. I mean, you might think they're frivolous, but the people who are bringing them may not think they're frivolous," which I actually didn't find super persuasive coming from the chief in the sense that imagine a case where someone is-- the state has determined someone is not a natural born citizen. And the question is, are they allowed to keep them on the ballot? Or for some reason, does Congress have to enforce that? Or some other argument. I don't think it would be a good counterargument to say, well, some other state can come up with a bogus argument that this other candidate isn't a natural born citizen, right?
Will: Right.
Dan: That seems totally unpersuasive to me.
Will: Right. And again, the Chief's objection was in part that insurrection is a broad, broad term, and then there might be some debate about it. And again, I think that what would be useful for the Supreme Court to tell us what an insurrection is.
Dan: Yes.
Will: [chuckles] And then, we would all work with that.
Dan: [crosstalk] -what they do, what they're supposed to do.
Will: And we propose a theory of what insurrection is, and Mark Graber has a theory that it's even broader than we say it is. Or, if they disagree and think that insurrection is something else, they could say that. The fact that the court is so worried about the disuniformity, while at the same time it is afraid to actually just tell us-- like, if they think that January 6th was not an insurrection or the President did not participate in it, they could just say that and that would be straightforward.
Dan: Their current argument is, like, "This is going to lead to so much disunformity because we really don't want to have to tell you."
[chuckles]
Dan: "Please don't make us figure this out. Please don't make us talk about the tweets."
Will: Right. Even just to say they're fine. I mean, again, Trump's supporters take the view they're fine, that the tweets are beautiful, the January 6th was beautiful, and that none of it was an insurrection. And I think that's wrong. But you could say that if that's what you think. That's what I think makes the case so funny in some ways. It just got funnier and funnier as it went on.
Dan: Okay. Is it okay if I put a different issue on the table?
Will: Please.
Dan: Okay. The other question that came up from a very pointed questioning from Justice Gorsuch to Murray, who is his former clerk-- and I got to say, a lot of people said this, and I don't totally disagree with it, which is that he was a little rough on his former clerk. He was pretty aggressive and sort of telling him he wasn't answering the question. I don't know if it's fair to say it was personal, but it was a little bit sharp-elbowed. But substantively, he comes after Murray and says, "Your position, as they understand it to be, is that as of January 6th, between January 6th and January 20th, Trump, I guess, is not the president, or at least is disqualified from the presidency. I want you to tell me whether that's right," and I've got a maybe way of thinking about it, I don't know if it's right. And then the question would be, if Trump pardons somebody on January 7th, is that valid? Any number of other things you can imagine. Is every action that he takes from January 7th to January 20th when he stops being president, totally ultra vires because he's not president anymore, he's just a guy.
Will: Yes. This was a rough part of the argument, and this was one of those times when Justice Gorsuch, every time the person starts to give answer, Justice Gorsuch says, "No, you're changing the hypothetical. No, that's not the answer." So, Murray tried to say was that this depends on the de facto officer doctrine, which is correct. And then, Justice Gorsuch kept saying, "No, no, don't talk about the de facto officer doctrine. This is not about the de facto officer doctrine." And then, Murray tried to explain why it is about the de facto officer doctrine. And Justice Gorsuch said, "No, you're not allowed to use the de facto officer doctrine." And eventually, Murray gave an answer that is the substance of the de facto officer doctrine answer without using the words de facto officer doctrine, [Dan laughs] which is apparently the way to get out of this.
Dan: Yeah.
Will: So, the de facto officer doctrine in the 19th century was broader than the court thinks it is now. And it used to say something like, as long as the person is still in possession of the office, like Trump is the de facto president on January 7th, not the legal president under this theory, but the de facto president, then people still have to obey his orders until some kind of a removal proceeding is brought, like impeachment or the 25th Amendment or quo warranto back in the 19th century. So, I think, as I understand the challenger's theory, which I think is probably right, and this is tricky and I might write an article about this once nobody cares about it anymore, but it's probably right to say on January 7th, Trump was no longer eligible to be president.
Dan: But he was in fact president.
Will: But he was in possession of the office of president.
Dan: Yeah.
Will: And so, we mostly treat him as president unless Vice President Pence invokes the 25th Amendment or Congress impeaches him or something like that. In the 1980s, the Supreme Court sort of broadened this doctrine to make it easier to challenge administrative agencies like PCAOB in Bowsher v. Synar, and all these separation of powers cases. So, Justice Gorsuch has now thought of the new de facto officer doctrine that the court has that exists now. But I think you don't have to call it that. But Blackstone has this example about what if the king is a usurper? Is it still treason to kill the king? And Blackstone says yes. Even if the king is not supposed to be the king, even if it's a usurper who's wearing the crown, regular people are not supposed to kill him.
Dan: Do you agree with that?
Will: Well, I think so. It leads to some uncomfortable questions and things like that, but I think that's how our system works.
Dan: Yeah. So, why do you think he was getting so much pushback on this?
Will: I think the framing of the other issue about Section 3 being self-executing might make you think that you're sort of like, "Oh, you think that just like the president immediately stopped being the president and nobody's supposed to obey their orders anymore?" And we have a threat of that in some of our case law. If you appoint somebody to office and insulate them with two layers of removal or whatever, stuff like that, we do sometimes just say, "Oh, look, everybody gets to challenge the enforcement orders." And there is some case law like that, some case law that would support the broader remedial view too. It's not totally easy, but I think that's sort of-- he ended up being framed as the one who thinks that everything happens immediately, and nobody cares about any consequences. And so, then they just were trying to push him into things that he doesn't actually think. But I think this is one of those-- I think it's good to make up advocate to answer the question. But I do think sometimes you have to let them then answer the question rather than-- [crosstalk]
Dan: Yeah. I mean, you can't just say, "What's your answer? And let me take your answer off the table."
Will: Right. And especially not two words in. It's actually something Judge Posner used to do, especially during his sort of last few years of decline, is he'd be like, he'd ask the question and then you'd say three words. He'd say, "No, I don't want you to refer to any text or legal provision or any other legal document." And then, you would say, "Well, your honor--" "No, well, that's a legal document." Or it would just sort of all unravel. Look, the argument was pretty hot by then, so I'm not quite sure what you're supposed to do.
Dan: Yeah, okay. What other surprising things happened? Weird things that happened? What else is notable to you?
Will: Well, this is two related notable things. I thought, in general, Trump's lawyer, Jonathan Mitchell, was unusually candid and transparent in several different ways. There were several times the Justices were kind of like, "Why aren't you making this argument?" And then, he would say-- with the normal things as an advocate, you'd say, "Oh, of course we're making that argument. That's the argument you want us to be making. That's fairly included in all of our arguments." And he several times would say something like, "Well, I'm not making that argument because--"
Dan: Yeah, so here's an example. On page 15, Justice Kagan says, "Well, what would your position be if Griffin's case had never decided?" And he says, "So, in jest as a matter of first principles, without Griffin's case, it's a much harder argument for us to make because normally, I mean, every other provision of the 14th Amendment has been treated as self-executing." Yeah, I was surprised by that too. It wasn't ineffective necessarily.
Will: Right. No, I think it was not ineffective. And there are people, there are amici who wanted to make a different argument that Griffin's case is right as a matter of first principles, either because section 1 is also not self-executing, the argument that Josh Blackman and Seth Barrett Tillman have made, or you could try to make some argument why it's different or something, but that was unusual. Or another one he made was Justice Jackson, about this officer of United States thing. Justice Jackson kept encouraging him to rely on legislative history. There's some work by Kurt Lash that my coauthor and I have attacked quite harshly that suggests that maybe there was some intentional or unintentional ambiguity in the drafting of Section 3, and so why wasn't he relying on that? And then, Mitchell says, this is a page 62, "We didn't want to make a law office history type argument, where we just look at the historical evidence and pick the evidence that we like and interpret it tendentiously because the other side can come back with us and throw the countervailing evidence back in our face. So, we wanted to focus more on the text of the Constitution." And that raised a lot of eyebrows.
You tell me, maybe I'm too much of a law professor too. Jonathan Mitchell used to be a law professor before he went into this line of work. I think that was effective. Nothing's going to stop the court from relying on the law office history if they want to. I don't know if they need it, and I don't know that Justice Jackson's going to refuse to cite it if she likes it. But I don't know, I think it's true [chuckles] and helpful not to sort of lead the court down an area where the-- I don't know. What did you think?
Dan: Yeah, I liked that as well. In general, it sort of seemed like for someone that you would expect to come in kind of making strong originalist arguments to originalist court, he seemed less originalist than I would have expected. Seemed kind of willing to make slightly more pragmatic arguments, willing to lean on the history a little bit less. And yeah, I think that wasn't a bad choice because however much they profess fealty to originalism, I mean, all Justices continue to use a kind of mix of modalities of constitutional interpretation. And acknowledging the places where you're weak and trying to move over to the places where you're strong strikes me as a good use of limited time.
Will: Mm-hmm. Now, I do think it was especially strong given the setup, which is the court wants to rule in his favor and it's trying to figure out how to do it. Like, there are times you come in-- I don't know that it's as effective if you come in and the court's not already kind of leaning your way.
Dan: Yeah.
Will: And they have a lot of arguments to do it. And so, the tone of the first half of the argument I think he was trying to make it, is like, "Look, we're all on the same team here. We all understand we have to find some way to reverse. And I'm just here to candidly guide you through what are the better and worse ways through that. "And you might think that's a good way through it, but he's confident that if he tells the court don't use legislative history, it's not like they're going to vote against him, they'll find some other way to rule for him. He's just keeping them from stepping on stuff that's not that strong. So, I don't know that I would try that at home if you were an ordinary Supreme Court advocate arguing a normal case.
Dan: Yeah, I think definitely very contextual. Okay, let's imagine that the court goes off on this argument that basically that I think Congress has to make the decision. I mean, is that the most plausible outcome right now?
Will: I think the court is going to say, as I understand the theory they're trying on an argument, they're going to say Congress has to make the decision if it's a state and if it's the president, but maybe not-- I don't know that they want to say that--
Dan: What do you mean "if it's a state"?
Will: There are several different places Section 3 can come up. Like, suppose somebody's trying to get admitted to-- there's a question about whether somebody in Congress is barred by Section 3. Traditionally, that's something that each house of Congress does by itself. So, the House of Representatives decides whether to admit Victor Berger, or suppose that the Senate debates whether to admit Josh Hawley. I don't think the court wants to rule out the possibility that the Senate gets to make that decision by itself. They're not going to say Congress has to act there. And if the state of Colorado concludes that-- the state of New Mexico has already concluded that a county commissioner, Couy Griffin, who marched in January 6th, was an insurrectionist and disqualified him. He has a pending cert petition, I think, being held for this case. I don't think the court necessarily thinks he should get relief. I'm not sure. So, I don't think they want to say Congress has to act with its date, disqualifying its own people.
Dan: I mean, that would be still reviewable if it's an incorrect interpretation of Section 3, right?
Will: Right. Yeah, but I don't know if they want to issue a ruling so just categorically he wins-- [crosstalk]
Dan: Congress has to decide whether people can be random city councilmen or something.
Will: Right. So, I thought they were trying to feel out some way to say for this case-- And then also, I thought the chief had a hypothetical of Jonathan Mitchell early on that I'm still not sure what he intended by it, which was, what happens if the person just admits it? What happens if somebody walks into the Colorado Secretary of State's office and says, "I committed insurrection, I'm disqualified by Section 3. Sign me up to be president." [laughs] Like, I admit that I'm not qualified. I'm not even sure the court wants to rule out that possibility, that a person who admits that they're disqualified can't be on the ballot. But at least when it's a state and a presidential election and they don't admit that they're disqualified, then they can't do without Congress, it's sort of where I heard them going.
Dan: Yeah. And there seemed to be a lot of kind of argument floating around, relying on U.S. Term Limits v. Thornton, that led to some very confusing moments in argument. For whatever reason, Mitchell kept referring to that case as "term limits." And at least one Justice on the court, Justice Sotomayor, possibly more misunderstood what he was saying and kept thinking that he was saying something about the Constitution's requirement that a president serve only two terms is the thing that resolves the case. And eventually, the Chief Justice had to step in and clarify it. I don't know why he didn't just call the case "US term limits" or "Thornton" or any number of other things.
Will: No, when you are more steeped in the case, this is always the hazard of [unintelligible 00:43:16], you're more steeped in the case than the Justices. And so, there are just things that it doesn't even occur to you you have to specify that you have to specify. But luckily, the Chief sorted it out for a bit.
Dan: Yeah. Now, thinking back to that case held that states cannot effectively impose term limits on members of Congress by refusing to put them on the ballot more than X number of times. And in that case, even Justice Thomas agreed in dissent that states couldn't do that for the presidency, right?
Will: No.
Dan: That's a national office.
Will: I mean, Justice Thomas agreed that states can't create qualifications for the presidency. Like, one state couldn't say the president has to run for only one term. But the question of how ballot access interacts with that, I don't think-- I'm not sure any of them took a position on for the president. The question of whether getting on the presidential ballot is the same thing precisely because when Colorado doesn't lead you on the Colorado ballot-- another way put it is, I think everybody agrees that Colorado cannot kick you off the ballot in every state, Colorado cannot kick Trump off of the Texas ballot. I mean, that's the thing Justice Thomas agrees with, but that's obvious they can't do that. Like, they wouldn't even try to do that. The question is whether Colorado can kick them off their own ballot, which I think-- how that intersects with term limits is more complicated.
Dan: The people of a single state may not prescribe qualifications for the president of the United States. Selection of the president is not up for the people of any single state, does not follow that the people of a single state may not prescribe qualifications for their own representatives in Congress.
Will: So, it's correct. The selection of the president is not up to the people of any single state. That's why Colorado can't say Trump's not allowed to be in the ballot in any state, that they can't forbid him from being on the ballot in 50 states. The question is, if Colorado forbids for him to be on the ballot in their state, is that--
Dan: But really, I interpreted him as saying that a state can take someone off the ballot in their state, given that they're just representing that state but a state can't take somebody off the ballot if it's the presidency, which is a truly national office.
Will: I mean, that is exactly how the case has been cited. I don't think that's what it says or even what Justice Thomas is implying.
Dan: But I mean, the other proposition seems stupid. I mean, no one thinks that-- no state would even try to control who's on the ballot in a different state.
Will: I mean, I agree, but I think that's all Justice Thomas is saying there. Justice Thomas is trying to point out that his view is consistent with the view that the people of one state can't control a nationwide thing. But again, I think nobody thinks they can. He's just trying to show the logic of his position. Because Justice Thomas knows that the people of one state can decide not to just allocate the electoral votes for one president, that they aren't required to [crosstalk] have the same people-- I mean, different people make up the ballot in different states.
Dan: Interesting.
Will: I do think there's a way in which we've now moved, this might become a very [unintelligible 00:46:02] constitutionalist opinion. We've now moved to having a national presidential election in practice. And so, a lot of these original features about how it works now seem like super counterintuitive. And that's part of the challenge. Did you see, related to Jonathan Mitchell's oral argument, the court also had a motion of Professor Seth Barrett Tillman for leave to participate in oral argument as amicus curiae and for divided argument?
Dan: Yes. And that was denied quite promptly.
Will: Yes. Although Josh Blackman, Professor Tillman's coauthor and lawyer in these cases, has had a series of posts in The Volokh Conspiracy about how Mitchell did a terrible job at argument and waived all these arguments they would have made and this is a-
Dan: Yeah, and-
Will: -disaster.
Dan: -I don't agree with that as a descriptive account. Yeah. I mean, filing that kind of a motion is really not typically a great idea unless there's a really extraordinary reason why you're needed. I mean, Aditya Bamzai, as a professor filing an amicus brief, got to argue in a case, a few terms ago involving a question about the-- what's the case? The Court of Appeals for the Armed Forces.
Will: Ortiz v. United States, yeah, about the jurisdiction of the Court of Appeals for the Armed Forces.
Dan: And so, he had an argument that neither party was making, that was the Supreme Court lacked jurisdiction over the case because it technically qualified as regional jurisdiction and not appellate jurisdiction and went back to Marbury. And so there, they let him argue, I guess, because maybe it's because an issue that went to the jurisdiction of-- [crosstalk]
Will: I think it was an issue that went to jurisdiction, so they had to confront it. And both parties agreed that there was jurisdiction. So, it's the case where they would normally appoint an amicus possibly, and there, they had an amicus at hand who they knew would be an expert at it. So, that makes sense.
Dan: Yeah. And then Steve Sachs, who I represented when I was back in practice, filed a motion in Atlantic Marine, a civ-pro case, and the court denied it, but then sort of said, like, "We'll expect the lawyers to kind of be prepared to discuss his views," which is like halfway there.
Will: That's pretty good. Were you the one who filed that motion?
Dan: Yeah. I wasn't council record, but I was on the filing.
Will: So, you have in fact filed a motion for divided argument for a law professor?
Dan: I suppose so.
Will: And, in fact, gotten something other than a rote denial from it.
Dan: I suppose so. I think we might have filed it after I had left the firm. I don't recall the exact timing.
Will: Yeah. Maybe that's what Tillman was hoping for, at least was that the parties should come having reviewed all of Seth Barrett Tillman's scholarship and the meaning of officer in the constitution.
Dan: They didn't even get that.
Will: And be prepared to discuss the footnotes.
Dan: Yeah. He had a featured story in the Times a couple weeks ago. He's an interesting character.
Will: He is. He's very smart. He may have several Justices who agree with him.
Dan: On the officer question?
Will: Yeah.
Dan: You think several?
Will: Hmm, it sounds like Justice Gorsuch might be going there too. So, that's maybe two. I think Gorsuch-Jackson concurrence on officers has a nice--
Dan: Yeah.
Will: So, can I ask one more question before we--? What happens after this? Like, if the court resolved the case on some set of those grounds we were discussing, that it’s left for Congress-- [crosstalk]
Dan: Then, we have to have the fight about whether Kamala Harris can do the right thing when you're counting the electoral votes.
Will: Well, I think it's extremely clear that Kamala Harris can't do the right thing.
Dan: Yes.
Will: Because the Electoral Count Reform Act, now explicit, was always implicit that it's not the vice president's jobs. But can Congress do it? And then also, the Electoral Count Reform Act contains a new private cause of action that allows candidates who are aggrieved by the electoral account to file suit in a three-judge court of the District of Columbia with like expedited review.
Dan: So, if Trump wins and is declared president, Biden could file suit on January 21st?
Will: Well, I don't think it has to be Biden. I think-- [crosstalk]
Dan: RFK Jr.?
Will: RFK Jr. or that Castro guy. I'm not quite sure-- this is a new cause of action, I haven't looked into it, so I'm not quite sure what you have to do to be a candidate. Like, do you have to get at least one electoral vote? Do you just have to get at least one write-in vote somewhere? In which case-- yeah, I wasn't sure. But do you think the court is aware that it's leaving those options open and happy about that?
Dan: I would think so. And that is what makes a different route that basically just says this cannot apply in these circumstances more attractive.
Will: Right. Except apparently not-- [crosstalk]
Dan: Because otherwise there is a non-zero chance they would have to confront it again which, my sense is they do not want to do.
Will: Doesn't it seem better to resolve the rules of the election before we have the election rather than after we have the election?
Dan: I would think so. I would certainly think so because you can imagine a world where this somehow doesn't get resolved in court later but it's this lingering argument that people make during a second Trump term.
Will: Sure. Well, and if Justice Gorsuch doesn't believe Murray or me about the de facto officer doctrine, I guess he thinks that as soon as Trump is president, the first person who gets issued an order they don't like can bring it to the court, at which point, presumably, they will say he's allowed to hold office for some reason. So, you'd think they would just figure it out now.
Dan: Yeah. Okay, well, hold out hope for your sake that when they sit down and start drafting, they will keep finding their eyes, glancing back towards your article, and ultimately find its arguments so compelling, there's no choice but to affirm here. But probably not the most likely thing at this moment.
Will: But you can't say they weren't warned.
Dan: Okay, any other thoughts?
Will: No. Let's wait for some more good opinions to talk about in this case or some other case.
Dan: Eventually, we will get some.
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Dan: Thanks very much for listening. Please rate and review on the Apple Podcast app or wherever else you get your podcasts. Please visit our website, dividedargument.com, where we put transcripts up relatively soon after each episode. store.dividedargument.com, which is where we sell merchandise, t-shirts and the like. Send us an email, pod@dividedargument.com. Or leave us a voicemail, possibly in song form, 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to Dan for coming in and recording on a day when he wasn't feeling great.
Dan: Anything for you, Will. And if there is a long delay between this and our next episode, it's because we've been declared ineligible for podcasting by a state electoral board.
Will: There'd be a Supreme Court review, right? We'll get Jonathan Mitchell represents us.
Dan: We’ll find out.
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