Rick Hasen Live Blog of Oral Arguments in Trump Disqualification Case at Supreme Court (Updates Complete)

[This live blog is concluded. Stand by for thoughts on the argument.]

Today the Supreme Court hears oral argument in Trump v. Anderson. The first thing I’ll be listening for is whether Trump’s lawyer gets any traction with the hyper-technical argument that the president is not an “officer of the United States,” which if successful would render Trump not subject to disqualification under Section 3 of the 14th Amendment. I explained here and here why the argument appears weak, but Trump has put most of his briefing into this argument.

Everyone I know expects Trump to win because it would be politically monumental for the Court to remove a major, popular candidate, but seeing the doctrinal way to get there is hard.

It’s going to be a long argument—expect it to be over two hours and perhaps as long as three hours.

Arguments should start momentarily, and Trump’s lawyer Jonathan Mitchell will be up first.

Here are arguments:

Justice Thomas begins by asking whether the provision is self-executing.

Chief Justice Roberts asks a great question about whether an admitted insurrectionist can be kept off the ballot by a secretary of state. Mitchell argues that this would be impermissibly be adding to the qualifications of office. Roberts pushes back with Mitchell’s argument that a disqualified candidate is eligible because Congress could put him back on the ballot with a 2/3 vote. Roberts sees that as pretty unlikely.

Interesting that the first two questions do not address the “officer of the United States” question, where Trump has put most of his efforts.

Worth noting that with Justice Thomas asking the first question, it means that he has not recused himself, despite his wife Ginni Thomas being involved in post-2020 attempts to subvert the election outcome.

Justice Sotomayor out of the box with a very skeptical set of questions on self-executing and power to keep disqualified candidates off the ballot.

Mitchell calls it a “one off” situation. That, of course, is a problem with a one day only ticket, as I wrote in Slate.

Justice Kagan opens up with a question that also seems skeptical of the argument. Mitchell seems to be shifting his argument.

Note that we are 15 minutes into this argument, and nothing yet from Justices’ questions about whether the President is an “officer of the United States.” That’s a very big deal because that’s what Trump thought was his strongest argument by far.

Justice Barrett asks if Congress is restrained by the qualifications clause. Mitchell surprisingly says no.

Alito seems to be buying into the Jones Day argument, that the ban is only about holding office, not about running for office. (That argument would mean that 22 year olds, presidents who have served 2 terms, etc. would have to remain on the ballot.)

Alito is coming to Mitchell’s rescue on what “self-executing” means.

We have heard nothing yet from Justices Kavanaugh, Gorsuch, or Jackson. I’m most interested in Gorsuch, who as a 10th Circuit judge allowed Colorado to keep an unqualified candidate off the ballot.

Mitchell says a state can keep someone off the ballot for President if they’ve served two terms. Discussion as well as to age. Seems hard to distinguish.

It sounds like Justice Sotomayor is confused when Mitchell says “Term Limits”. He means the U.S. Term Limits v. Thornton case, not the words “term limits.”

Here is Justice Jackson, pushing back on the difference between disqualification on insurrectionist grounds versus other grounds like age. Mitchell is trying to claim that some are categorical vs. things that are not.

Overall, so far, Mitchell does not seem to be doing so well with his arguments. He’s getting a lot of pushback, including from Barrett and Roberts. Still nothing from Gorsuch or Kavanaugh.

Justice Jackson wants to turn to the “officer of the United States” question but Kagan pushes back to stay on this issue….and then “do the officer stuff later.”

Justice Alito seems to be the only one who is strongly supporting Mitchell and the argument that it is about holding office not serving. That of course would lead to chaos, if for example, Trump stays on ballot, appears to win, and then Dems in Congress on January 6, 2025 say he cannot serve. (We wrote about that in the Foley-Ginsberg-Hasen amicus brief.)

Justice Kavanaugh weighs in and asks if Griffin’s case gives us insight into the original public meaning of Section 3 of the 14th amendment. It does suggest Kavanaugh might be sympathetic to the argument that Congressional legislation is necessary for a state to go forward with disqualification. I think this is one of the most likely off-ramps in the case.

Jackson turns to the “officer of the United States” argument, and she points to the two different close textualist arguments and she wants to know why he’s pushing only one. (I think it is because if you accept the other argument—the Tillman argument—it leads to some wacky results.)

And now Gorsuch weighs in, and he also seems skeptical on the officers/offices issue.

Here’s how I explained the difference in a recent Slate piece:

[T]here are really two related hypertechnical arguments here. First, because the presidency is not an “office” of the United States, the disqualification provision of Section 3 does not disqualify anyone who engaged in insurrection from serving as president. The second argument is that disqualification does not apply to a former president who has violated his oath, because the president is not an “officer of the United States” and Section 3 applies only to someone who has “previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States.” Trump has focused on this second argument.

Seems pretty clear to me there’s little traction to the “officer of the United States” argument.

We are now in the rounds of questions from the Justices, before we turn to Anderson (the voters’) lawyer.

Sotomayor says “it is a bit of a gerrymandered rule” that only helps Trump. This is what I wrote in the Slate piece on Trump asking for the Bush v. Gore treatment.

Kagan pushes back on the office/officer point. Mitchell concedes that “office” argument would mean that an insurrectionist could serve in any office but the President but that would be bad for the commander in chief. This seems to be an important concession.

Gorsuch is getting into the technical textualist argument, as we would expect. He seems skeptical from his questions.

Kavanaugh is back to Griffin’s case. This is the case where one Supreme Court justice suggested that Congress would have to come in and authorize a state to disqualify a candidate. (It’s a great offramp in this case if the Court wants to side with Trump.) So far no other Justice has seemed to go there.

Justice Barrett is more skeptical of relying on Griffin’s case. She says to assume she disagrees on the “officer of the United States” argument. She says that under Griffin’s case would allow an end run around impeachment through a congressional quo warranto action. (The question suggests she’s skeptical of the Griffin argument.)

Justice Jackson comes back to the history. She’s using it to ask whether they were concerned about lower offices and not the presidency. But Mitchell says that there were SOME concerns about a confederate in the presidency.

Jackson asks whether this was an insurrection and Mitchell says no, it’s a riot.

So where are we at the end of the first part of oral argument? On the one hand, the justices seem skeptical of Trump’s major textualist arguments. Hard to see what path they would use to side with Trump. On the other hand, there was only one question about whether Trump engaged in insurrection and related questions on the First Amendment etc. If they were going to disqualify Trump, they’d have to deal with that more…

We now turn to Jason Murray, arguing for the voters (who want to have Trump disqualified).

Justice Thomas opens with the history….Question is about disqualifying national candidates. Thomas is quite skeptical that Section 3 could reach that broadly.

Chief Justice Roberts suggests that there would be a problem with allowing southern former confederate states to allow them to enforce this provision against federal officeholders without congressional legislation. Not aligned with the scope of limiting state power under the 14th amendment.

Kavanaugh seems to be lining up with Chief Justice Roberts to give states this much power.

Kagan comes in too.

It seems pretty clear from the questions from Roberts, Kavanaugh, Kagan, that the Court is likely to rule that states cannot disqualify federal officers under Section 3 of the 14th Amendment, at least without congressional legislation.

Barrett piles on and says that the voters’ position gives an advantage to the first mover. First state goes and decides if he’s disqualified and then the factual findings would be subject to clear error review.

Gorsuch suggests he sees this rule as about holding office, rather than running for office (this is the Jones Day argument). He notes that the disability of disqualification can be removed.

Chief Justice Roberts wonders about disqualification proceedings “on the other side” (like Texas excluding Biden—though Roberts doesn’t say that). He suggests that’s chaos. He says it would be a “daunting consequence” of ruling for the voters.

Important to note that the liberal Justices are not pushing back on this argument about the federal interest here. Suggests the cake is already baked. Perhaps they’ve also been discussing the immunity case and whether to let that go to trial and not grant a stay next week.

Kavanaugh remains caught up on Griffin’s case.

It would not be surprising to see a quick 9-0 or 8-1 ruling reversing Colorado and keeping Trump on the ballot, with Roberts writing a majority interst on the federal interest, and perhaps some concurrences (Kavanaugh on Griffin, Alito and Gorsuch on “holdin” office). Sotomayor is the question mark.

Justice Jackson too is on the uniformity train. She asks why would the framers design a system that allows disuniformity.

Murray’s arguments are coming to a close. At most I count one Justice (Sotomayor) potentially on his side.

Appreciated that Murray mentioned the amicus brief I signed with Ned Foley and Ben Ginsberg. (Michael Kimberly author of brief.)

We are in the final rounds of questions to Murray, and then onto a short(?) presentation from a lawyer representing the secretary of state of Colorado.

Murray notes that if the Supreme Court goes this way and takes an offramp, the question could come back on January 6, 2025 and resolved by Congress. That would be a nightmare if Trump wins and Democrats consider disqualifying him. As we discuss in our amicus brief.

Now we are hearing from Shannon Stevenson, the Colorado Solicitor General.

These questions from the Justices are mostly asking how Colorado would figure out if someone is qualified.

Kagan suggests this disqualification is different than disqualifying on the basis of age etc. Federal intererst, in 14th amendment, gives Congress a special role, etc.

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