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1:12

Welcome. Back to strict scrutiny your

1:14

podcast about the Supreme Court and

1:16

the legal culture that surrounds it.

1:18

Were your host: I'm Leah Littman,

1:21

I'm Kitchen and I'm Melissa Marie.

1:23

And today we're going to break

1:25

down the oral argument and Trump

1:27

vs. Anderson the case about whether

1:29

section three of the Fourteenth Amendment

1:31

disqualifies Donald Trump from peering on

1:33

the presidential ballot or from holding

1:35

the office of the Presidency because

1:37

of his alleged role in January

1:39

Sixth. As a reminder, section three

1:41

of the Fourteenth Amendment. Reads as

1:43

follows: Quote: No person shall be

1:45

a senator or representative in Congress

1:47

or Elector of President and Vice

1:50

President or hold any office civil

1:52

or military under the United States

1:54

or under any state who having

1:56

previously taken an oath as a

1:58

member of Congress. as an officer

2:00

of the United States, or as a

2:03

member of any state legislature, or as

2:05

an executive or judicial officer of any

2:07

state to support the Constitution of the

2:09

United States, shall have engaged in insurrection

2:11

or rebellion against the same, or given

2:13

aid or comfort to the enemies thereof.

2:15

But Congress may by a vote of

2:17

two-thirds of each House remove such disability."

2:20

Textualism. Originalism. I love

2:22

it. Let's

2:24

start with an overall top-line impression

2:26

of the oral argument. So Jonathan

2:29

Nistreich, who is representing former President

2:31

Donald Trump, finished his argument, and

2:33

it seemed pretty clear, at least

2:35

to me, that the court was

2:37

poised to reverse the Colorado Supreme

2:40

Court. There were no

2:42

questions, really, about whether Donald Trump

2:44

had, in fact, engaged in insurrection,

2:46

and the only real question seemed

2:49

to be how the court

2:51

was actually going to write this opinion,

2:53

reversing the Colorado Supreme Court. Now,

2:56

to be clear, the justices did

2:58

not seem to love Jonathan Mitchell's

3:00

preferred theories for reversing, but

3:02

more intriguingly, for our purposes, Jonathan

3:05

Mitchell stubbornly resisted some of the

3:07

justices' valiant attempts to steer him

3:10

toward their particular favorite theories. But

3:13

if Jonathan Mitchell seemed less concerned with

3:15

adapting his performance to the justices, it

3:17

did seem like he was performing for

3:19

some audience, and maybe it was just

3:22

an audience of one. As

3:24

Rewire's Imani Gandhi tweeted this morning, it

3:26

seemed like Mitchell, the architect of SB8,

3:29

the Texas abortion bounty hunter law, was

3:31

auditioning in real time to be Donald

3:34

Trump's attorney general. And with a hat

3:36

tip to Elena Kagan, all I have

3:38

to say is, some genius, indeed. Some

3:41

genius, but he still kind of needed Elena

3:43

Kagan to argue his case for him. We're

3:45

getting a little bit ahead of ourselves. That's

3:47

the some part. Exactly. That's right. That's the

3:50

some part. All The

3:52

argument was very focused on technical procedural

3:54

questions about who can enforce Section 3

3:56

and against whom. Is It the states?

3:58

Is it Congress? I'm an hour

4:00

and you know whether the provision applies to

4:03

the President and all, but it didn't seem

4:05

like the does This is where coalescing around

4:07

any of those theories or at least Trump

4:09

and Mitchell's versions of those arguments, but thinks

4:12

he came more clear. I think to all

4:14

of us when Jason Murray who was the

4:16

center really rattled supreme court's decision yet not

4:18

know release and not part of this Marie

4:21

Claire an ah when Jason Murray took the

4:23

lectern based on the various colloquy is between

4:25

Murray and the justices. we are pretty convinced

4:27

that the court is going to reverse the

4:30

Colorado. Supreme Court on the grounds that

4:32

states cannot disqualifies federal officials or

4:34

perhaps just the President absent congressional

4:36

authorization to do so. This is

4:38

a little different from any of

4:40

the arguments missile made those related

4:42

to some of them. so we're

4:44

going to flush that out. And

4:46

we should note that it's not

4:49

clear how exactly the court will

4:51

justify this new Air Quotes rule

4:53

that saves can't disqualify federal officeholders

4:55

absent congressional authorization, but it does

4:57

seem like that is exactly the

4:59

direction that. They're headed and. The. We're

5:01

in a place eclipse outlining the theory for

5:03

reversing, and then we'll discuss them. and again,

5:05

you're here in these clips: different species that

5:08

are floated. kind of for the idea that

5:10

seats can't disqualify. Federal Officeholders, apps and

5:12

Congressional Authorization and more thing after we

5:14

put the clips. So let's start with

5:16

this one from Chief Justice Roberts. From.

5:18

In the whole point of

5:20

the Fourteenth Amendment was to

5:22

restrict stay powered right States

5:24

are so much for bridge

5:26

privileges immunity. They will deprive

5:28

people's property without due process

5:30

or they will deny equal

5:32

protection. On the other hand,

5:34

augmented federal power under Section

5:36

Five, Congress has the power

5:38

to enforce it, so wouldn't

5:40

that be the last place

5:42

that you'd look for authorization

5:45

for the states including Confederate

5:47

States, or to enforce implicitly.

5:49

Authorized to enforce the

5:51

presidential election process that

5:53

that seems to be

5:55

a position that use

5:57

that. Are at war with

5:59

the food? Thrust of The

6:01

Fourteenth Amendment and very a

6:03

historical. Okay, so this is

6:06

about the Fourteenth Amendment and the overall purpose

6:08

of that Amendments To the Chief here seems

6:10

to be saying that the Fourteenth Amendment told

6:12

states a bunch of things they couldn't do

6:14

right they can to make protection privileges an

6:17

immunity is due process, so it would be

6:19

weird in Congress inconsistent with the overall goals

6:21

of the Amendment to read another section of

6:23

the amendment to affirmatively empower the states, and

6:26

particularly when the final section section five gives.

6:28

Authority To enforce the Fourteenth Amendment not to

6:30

the states, but to Congress on this is

6:32

kind of a purpose of esther structuralist argument

6:34

about the amendment. And. By structuralist, we

6:36

just need something about the nature of

6:39

our government and the relationship. Between the

6:41

states and the Federal government and. The people

6:43

and that the court in firms

6:45

from the organization of those relationships

6:47

a kind of meaning about the

6:49

structure of the document, the Constitution

6:51

or the Fourteenth Amendment itself. Okay,

6:54

here's the next clip this is

6:56

from Justice Elena Kagan Said maybe

6:58

put most boldly, I think it's

7:00

a question that you have to

7:02

confront is why a single states

7:04

should decide who gets to be

7:06

President of the United States. And

7:08

other words, you know this question

7:10

of whether a former president is

7:12

disqualified for insurrection to be president

7:14

again. His fiancee just. Say it

7:16

sounds awfully national. To me.

7:18

so whatever means there are to

7:20

enforce it. Would suggest that they have to be.

7:23

Federal. National means. Why does the

7:25

Us analysts you were and from

7:27

Colorado when you were from Wisconsin

7:29

or you were from Michigan and

7:31

it really you know what the

7:33

Michigan Secretary of State did is

7:35

going to make the difference between.

7:39

You know whether candidate A is elected

7:41

or candidate be selected, Mess is quite

7:43

extraordinary, doesn't it? Here. just

7:45

if he can assess staring at a

7:48

principle of federal supremacy over federal elections

7:50

that isn't necessarily tied to the fourteenth

7:52

and and in particular she saying in

7:54

general went really national interest or it's

7:56

steaks the constitution as weary of getting

7:58

the state's role as primary mover So

8:00

some examples of doctrines that reflect this

8:02

vision of federal supremacy and disempowering the

8:05

states in matters of national importance include,

8:07

for example, the dormant commerce clause. That

8:09

is a negative principle the court

8:11

has inferred from the commerce clause,

8:14

that state laws burdening inter-state commerce,

8:16

commerce between the states are disfavored,

8:18

but that Congress may specifically authorize

8:20

them if it so choose. There

8:22

are also doctrines of inter-sovereign immunity

8:24

that limit the extent to which

8:26

states can regulate the federal government

8:28

in particular, again, because federal officers

8:30

represent the entire nation, whereas individual

8:32

states just represent that state. It's

8:34

interesting because Justice Thomas and other

8:36

justices have expressed skepticism about the

8:38

dormant commerce clause, among other doctrines,

8:40

because they say it's not explicit

8:42

in the constitutional text. It is

8:44

another structural principle. So it will

8:46

be interesting to see whether all

8:48

justices sign on to some version

8:50

of this other structural principle they

8:53

might infer from other aspects of

8:55

the Constitution. US term limits

8:57

versus Thornton, that's a case, is

8:59

also an illustration of either this principle

9:01

or a related principle. You probably

9:03

heard references if you listen to the argument. In

9:05

the first 30 minutes, there were a lot of references

9:07

to term limits, and people, I think, might have been

9:09

confused, at least the Chief Justice either was or worried

9:11

that others might be, because he spoke up to say,

9:14

when you're talking about term limits, you're actually talking about

9:16

the Thornton case, right? And of course, that is what

9:18

Jonathan Mitchell was talking about, and it's a case that

9:20

basically asks whether states can impose term limits on members

9:22

of Congress. There was a real movement of foot to

9:24

do that in the 90s until the court put a

9:26

stop to it in term limits versus Thornton, and held

9:29

that states can't, that the Constitution sets forth the requirements

9:31

for membership in Congress, and states can't add

9:33

to those. Although I do feel

9:35

like Thornton is distinguishable in this case, because

9:37

Colorado here is really just trying to implement a

9:40

requirement in the Constitution rather than create a

9:42

new one. But this argument and the case in

9:44

particular are ones that Mitchell spent a lot of

9:46

time on and did seem to me to maybe be

9:48

getting some traction. Yeah, Mitchell seemed to

9:51

want to square that circle by saying,

9:53

well, the Constitution just prevents insurrectionists from

9:55

holding office, and the states are trying

9:57

to prevent them from running for office.

10:00

As we've noted before, that's slicing

10:02

the baloney pretty thin and potentially

10:04

creating all sorts of practical problems

10:06

in delaying the determination about whether

10:08

someone is disqualified from office. So

10:10

I don't necessarily see the justices

10:12

embracing that distinction, but that was

10:14

his version of the Thornton argument.

10:17

And if it seems like many of

10:19

the justices wouldn't get down with that

10:21

Thornton-esque argument, you can count on one

10:24

Neil M. Gorsuch to actually embrace it

10:26

wholeheartedly. So here's an exchange where Justice

10:28

Gorsuch seems to be a little

10:30

Thornton forward. Do you agree

10:32

that the state's powers here over its

10:35

ballot for federal officer

10:37

election have to

10:39

come from some constitutional authority?

10:42

Members of this court have disagreed

10:44

about that. I'm asking you. Uh,

10:46

the majority of this court has

10:48

said that those powers come from

10:51

Article II, but we

10:53

think that the result is the same whether the court

10:55

locates it in Article II or in a reserve power

10:57

under the 10th Amendment. But you accept that this

10:59

court has held. You're not

11:01

contesting this or asking us to revisit that

11:03

decision in Thornton or term limits or whatever

11:06

you want to call it, that it has

11:08

to come from some federal constitutional authority. This

11:11

is offering another basis for the rule

11:13

that states can't disqualify federal office

11:15

holders absent congressional authorization. But again,

11:18

like the other Thornton-related arguments, this

11:20

is also a kind of structural

11:22

argument. OK, and now

11:24

we have Justice Katanji Brown-Jackson offering

11:26

yet another justification for the idea

11:28

that states can't disqualify federal office

11:30

holders without congressional authorization. I guess

11:32

my question is why the framers

11:34

would have designed a system that

11:37

would, could result in

11:39

interim dis-uniformity in this way,

11:41

where we have elections pending

11:44

and different states suddenly saying,

11:46

you are eligible, you're not,

11:48

on the basis of this

11:50

kind of thing. So

11:52

this, I think, is kind of outlining a

11:54

different structural aspect of federalism, that where there

11:56

is a strong interest in having a

11:58

single uniform rule, that there The Constitution

12:00

assigns the power to make that rule, not to

12:02

the individual states, but to Congress. And

12:05

because this is arguably a theory

12:08

in search of a justification or

12:10

home, here is yet another possible

12:12

justification for the court's likely conclusion

12:14

that states can't disqualify federal office

12:17

holders or at least potential presidents

12:19

without congressional authorization, this one also

12:21

from Justice Kagan. Mr. Mary, you

12:24

talked, you relied on the

12:26

state's extensive powers under the

12:28

electors' cause. You talked about

12:30

the states having a role in

12:33

enacting typical ballot access

12:35

provisions. I

12:38

guess, you know, it

12:40

strikes me that we've put some limits on that.

12:42

And I'll just give you Anderson versus

12:45

Celebrasi as an example of that, where

12:47

we said, in fact, states are limited

12:49

in who they can take off a ballot. And

12:53

that was a case about minor party

12:56

candidates. But the reason was

12:58

that one state's decision to take a candidate

13:00

off the ballot affects everybody else's rights. And

13:03

we talked about the pervasive national interest

13:06

and the selection of candidates for national

13:08

office. We talked about how

13:10

an individual state's decision would have

13:12

an impact beyond its own borders.

13:15

So if that goes for minor

13:17

political party candidates, why doesn't it

13:19

go for Shiori for the situation

13:21

in this case? And

13:23

this is more of a First Amendment or

13:26

voting rights angle to the case. Shiori is

13:28

saying that states can't restrict associational rights and

13:30

voting rights and the ability to select a

13:32

candidate absent sufficient justification or authorization to do

13:34

so. It is related to

13:36

the federalism supremacy angle. So she is suggesting

13:39

they are additionally infringing the rights of other

13:41

states' citizens. But it's a slightly different take

13:43

on that aspect. So there are many

13:45

candidates for how to ground this principle. And it's

13:47

not clear which, if any of them is going to

13:49

command a majority of the justices. But it does

13:51

seem like some version of that principle is

13:53

what they're going to go with. And

13:56

we mentioned that this is related to, but

13:58

actually kind of different from the theories Mitchell

14:00

Trump's lawyer focused on. So we'll talk about

14:02

the arguments Mitchell and Trump offered later on

14:04

in the episode. Strix

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16:01

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16:03

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16:07

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default rules, like the balance of power, between

16:16

the states and the federal government, well, read

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17:03

So that is basically where it seems like

17:05

the court is headed. Colorado can't take Daniel

17:07

Trump off of the ballot without congressional authorization.

17:10

So what do we

17:12

think about this argument? Because one thing I

17:14

think is really important to emphasize here is

17:16

that it was almost like the court was

17:18

inventing this argument in real time, because this

17:20

wasn't really the argument that either Donald

17:23

Trump or Jonathan Mitchell actually put

17:25

forth. So just a pause to

17:27

underscore that there were, I kid you

17:29

not, three paragraphs. That's three paragraphs in

17:31

Trump's opening brief that relate to this

17:33

argument. But they're all about

17:36

Griffin's case. And that

17:38

was about a state office holder. So

17:40

Mitchell and Trump were pushing the argument

17:42

that states can't disqualify state or federal

17:45

office holders absent congressional legislation. So

17:47

this idea that states can't just disqualify

17:49

federal office holders is really something that

17:51

emerged later and quite late in the

17:54

game. And there is definitely some

17:56

intuitive appeal to the court's version of this

17:58

argument, right? So there is clearly a

18:00

strong interest in uniformity here when we're

18:02

choosing a president for the whole country.

18:04

And if states disqualify someone from running

18:06

for president, they're not just shaping who

18:08

holds that office and who represents their

18:10

state, but obviously who represents other states

18:12

and other members of the polity throughout

18:14

the entire country. I think that's

18:16

right, though that is partially offset by the

18:19

fact that in this case the states are

18:21

claiming to be enforcing a requirement that the

18:23

Constitution imposes on the entire country, not some

18:25

independent requirement some individual random state came up

18:27

with, plus consider some possible

18:29

implications of the idea that states can't

18:31

throw out barriers to electing national candidates

18:34

like the president. If there were concerns

18:36

with states interfering with federal elections for

18:38

federal officers via state law, then why

18:40

don't all state voting restrictions, which affect

18:43

who can vote for presidential candidates, trigger

18:45

the same kind of scrutiny, like voter

18:47

identification laws? Those are going

18:49

to affect where the state's electoral votes for president

18:51

go, but I don't see this court that concerned

18:54

with those. Yes, and it's not just about ballot

18:56

access, just to sort of argue against the position

18:58

I just said has some intuitive appeal, because I

19:00

think in the abstract it absolutely does, but it

19:02

is pretty willfully blind to the reality of our

19:04

highly federalized elected administration system. So

19:06

that goes both for regulation of the vote, ballot

19:09

access, how you even get on the ballot as a

19:11

candidate, and the Supreme Court has imposed

19:13

some limitations and guideposts on what states

19:15

can do with respect to ballot access. But

19:18

there's tons of variation, even in terms of

19:20

who does appear on a ballot, like a

19:22

third-party or independent candidate sometimes will appear in

19:24

some states and not others. So this idea

19:26

that there's an absolute uniformity requirement if

19:28

we're talking about a presidential election is

19:30

inconsistent with a lot of settled practice.

19:33

And it's also inconsistent with two

19:35

other kind of ideas banding about

19:37

in the court's other jurisprudence. So

19:39

on a very general abstract level,

19:42

the idea that states can disqualify

19:44

federal office holders, particularly presidents, seems

19:46

a little inconsistent with some of

19:48

the justices' for

19:50

the independent state legislature theory. You

19:52

know, remember that the ISLT imagines

19:55

that states and state legislatures in

19:57

particular get to set the rules

19:59

about federal. elections because the Constitution

20:01

assigns them that role. And here the

20:03

Colorado Supreme Court said that the state

20:05

legislature had authorized the disqualification proceedings to

20:07

enforce this provision in the Constitution. So

20:10

is the 14th Amendment an exception to

20:12

the Independent State Legislature theory? If so,

20:14

why? What are other possible exceptions? I

20:16

don't know. The Gorsuch-Murray exchange we played

20:19

above relates to this since Murray is

20:21

invoking, you know, the electors clause as

20:23

a basis for the state's authority here.

20:25

But I think the court would have

20:27

to say that the Colorado legislature could

20:30

enact a law that awards the electors

20:32

to Biden because Trump is an insurrectionist.

20:34

You know, Justice Alito asked about this

20:36

as if to suggest the legislature couldn't

20:38

do such a thing. But if

20:40

they really do think a la ISLT is that

20:42

state legislatures get to set the rules regarding federal

20:44

elections, then the state legislature should be able to

20:46

do so, in which case that's also going to

20:49

threaten uniformity and, you know, the ability of people

20:51

in other states to select the candidate of their

20:53

choice. And, you know, one

20:55

last thought here, you know, depending on how this opinion

20:57

is written, I think I am going to

20:59

lose my mind at how inconsistent it will

21:01

be for the court, which has a

21:03

very narrow view about Congress's powers under

21:05

Section 5 to say, oh, states

21:08

can't do anything to enforce Section 3,

21:10

and we Supreme Court can't review this

21:12

because the Constitution gives Congress a particularly

21:14

important role in Section 5. The

21:17

Chief Justice kept invoking Section 5 as if

21:19

to say, wow, oh, my gosh, the Constitution

21:21

gives Congress a big role in this amendment,

21:24

yet they don't allow Congress to enact civil

21:26

rights laws that Congress thinks are important to

21:28

enforcing the 14th Amendment guarantees against the states,

21:30

like the 1875 Civil Rights Act,

21:32

or when they struck down RFRA as applied

21:34

to the states in City of Bernie versus

21:37

Flores, that's the Religious Freedom Restoration Act, or

21:39

other civil rights legislation like the ADA or

21:41

ADEA in Kimmel and Garrett. And it's just

21:43

a little too much for me. One

21:46

thing I was nervous about going

21:48

into the argument was the possibility

21:50

of the court here somehow opening

21:52

the door to another constitutional provision,

21:54

that's the 22nd Amendment, which limits

21:56

presidents to two terms, being

21:59

somehow... non-inforceable unless

22:01

Congress passes some implementing

22:03

legislation. And if not,

22:05

like states having trouble keeping, say, a

22:07

would-be third-term candidate Trump off of the

22:09

ballot in 2028. So

22:12

this is like the nightmare scenario that I've

22:14

spent a decent amount of time mulling over.

22:17

And Justice Sotomayor, I think, had done the same because she asked John

22:19

at the Mitchell this question directly, right? Like, could the

22:21

logic of his position and of Trump's position pave

22:23

the way for a president to run for

22:26

a third term and the state wouldn't be

22:28

able to disqualify him because states can't keep

22:30

someone off the ballot in a nationwide election?

22:33

And Mitchell said no. So

22:35

let's play that here. So you

22:37

want us to say, I'm wondering

22:39

why the term limit qualification is

22:42

important to you? Are

22:45

you setting up so that if some president

22:47

runs for a third term that

22:49

a state can't disqualify him from the

22:52

ballot? Of course a state can disqualify

22:54

him from the ballot because that is

22:56

a qualification that is categorical. And

22:59

it's categorical now, but I kind of wanted somebody

23:01

to pin him down on, no, I won't be

23:03

back here in four years making the argument that

23:06

in fact the 22nd Amendment, like

23:08

section three of the 14th, can't be invoked by

23:10

a state by itself. What does it

23:12

even mean to be categorical? Section three of

23:14

the 14th Amendment is a categorical rule that

23:17

insurrectionists can't hold office, right, unless Congress removes

23:19

it by a disqualification of two-thirds. So... Right.

23:22

And it's also a little... This answer exists in

23:25

some tension with, say, Justice Alito's suggestion

23:27

that if red states wanted to keep

23:29

Biden off the ballot as an insurrectionist,

23:31

like, so I'm not sure how, you

23:34

know, any of these are malleable or

23:36

categorical depending on how you frame them.

23:38

And so I'm not sure his answer

23:40

totally assuaged the concerns I had going

23:42

in. So I'm just going

23:44

to say all of this seems to be

23:46

putting a lot of authority in the hands

23:49

of Congress. And I don't know about you,

23:51

but I'm a little troubled

23:53

by the prospect of allowing Congress

23:56

to have the authority to weigh

23:58

in on an issue of national... importance

24:00

on a relatively short time frame right

24:03

now and I don't know when I

24:05

heard that I just sort of stared in

24:07

migrant crisis slash border control wasn't

24:10

sure that Congress is really fit for purpose.

24:13

You add to that there was so

24:15

much concern in this argument which we'll

24:17

touch on later about the state's retaliating

24:20

against political officials they didn't like or

24:22

just disqualifying opponents of a political party

24:24

and it's like have you paid attention

24:27

to Congress in the last

24:29

eight years right like not just the

24:31

attempted impeachment of Secretary of

24:37

Mallorca's but also the failed

24:40

efforts to impeach Donald Trump which

24:42

the DC Circuit conveniently reminded

24:44

us was informed by political

24:46

considerations in Congress and so

24:49

you know we never got a chance

24:51

to talk about the failed Mallorca's impeachment

24:54

and we won't have time to deal with it

24:56

here but all I'm going to say is Frank

24:58

Underwood would never like Jesus

25:00

Christ Mike Johnson count some votes

25:03

like what the hell boy

25:06

mass boy mass or bro

25:08

anyway they both say that

25:10

we are not ones to

25:12

toot our own horns but

25:14

I will note that in

25:16

our very first episode in which we

25:18

covered the Colorado disqualification case we

25:21

had this to say roll the tape

25:24

and just as a practice matter I don't think there is

25:26

any way that this court is going to allow the Colorado

25:29

decision to stand because it would create a

25:31

patchwork quilter before the election

25:34

the uniformity argument is powerful that makes sense

25:36

like a patchwork where ballots look totally

25:38

different from the perspective of the

25:41

major party candidate across the country

25:43

seems intolerable very

25:45

nice job ladies again you know

25:47

some people may be the some

25:49

genius but sometimes they need some

25:51

women to argue their case for

25:54

them girl now yeah

25:56

girl off better

26:00

So the justices also

26:02

discussed other arguments that Donald

26:04

Trump made that, just

26:07

to be very clear, the justices

26:09

did not seem that into these

26:11

arguments. Nevertheless, but did not stop

26:13

Jonathan Mitchell from beating these arguments

26:15

like a dead horse. And again,

26:18

I sort of wanted to stop him

26:20

to say, bruh, they're just not that

26:23

into you. They're into this other thing,

26:25

go with that, keep going with that,

26:27

but not these arguments. This

26:29

is all to say, though, that it is

26:32

very possible here that we are going to

26:34

get a very fractured set of opinions where

26:36

there's a coalescing around one particular

26:38

theory, but then there are also some

26:41

side writings where they discuss some of these

26:43

more fringe theories that didn't seem to get

26:45

a lot of traction with a majority. Side

26:48

hustle, side writings. One of

26:50

these arguments was something we referred to as the

26:52

non-self-executing argument. There were a couple of different versions

26:54

of this, but they both relate to the role

26:56

of Congress. And the first is

26:58

just that basically Section 3 needs federal legislation before

27:00

a state can remove someone from the ballot. And

27:03

Trump and Mitchell were also arguing that states

27:06

can't disqualify someone from appearing on the ballot

27:08

because Section 3 only prevents someone from holding

27:10

office, running for it and winning. And if

27:12

they do win, then Congress could always remove

27:15

the disqualification up until the moment of someone

27:17

actually holding the office. The states can't prevent

27:19

that process from happening. The justices were not

27:21

that into this argument either for a few

27:24

reasons. One, as we discussed with Rick Hossen

27:26

in our preview of this case, the theory

27:28

would really have the potential for chaos. It

27:30

would effectively require a decision to be made

27:33

only after an election. That is because

27:35

Congress could always choose to remove this qualification

27:37

right up until the moment someone takes office.

27:39

States would hold the election with Trump on the ballot.

27:41

Trump could win. And we just wouldn't know until January

27:44

5th or 6th whether he could hold office. Second,

27:46

the justices noted that this theory doesn't

27:48

make sense because Congress could use other

27:50

mechanisms to ensure insurrectionists are disqualified. And

27:53

These other mechanisms, which Mitchell conceded were

27:55

permissible, seem like end runs around the

27:57

idea that the decision has to be

27:59

made. By Congress according to a two

28:01

thirds vote about whether to remove a

28:03

disqualifications know the justices invoked a practice

28:05

of for warrant a recipe for that

28:07

and you were like what is that?

28:09

That is where Congress or State legislatures

28:11

authorized people to file what are called

28:13

quo warrant or risk Which does result

28:15

in an inquiry into whether someone is

28:17

holding their office legally. So. This

28:20

theory that states can't disqualify any

28:22

one because Congress could remove the

28:24

disqualification it sometimes associated with Griffin's

28:26

case, and we've alluded to that

28:28

case before. In fact, that I

28:30

feel like we talked about this

28:32

case far more than it actually

28:34

deserves to be talked about. But

28:36

just again, to put a line

28:38

under at Griffin's case involved a

28:40

defendant's challenge so criminal conviction and

28:43

the challenge was based on the

28:45

fact that the presiding judge and

28:47

that proceedings had previously thought for

28:49

the Confederacy. So Griffin invoked this

28:51

insurrection clause for the proposition that

28:53

his conviction was improper because the

28:55

judge who. Had presided over the

28:57

entire. Proceeding had been a

29:00

member of the Confederacy Chief Justice

29:02

Salmon Chase him at the time

29:04

was writing circuit and issuing this

29:06

opinion for an appellate court and

29:08

not the Supreme court ruled that

29:10

the quote Unquote Insurrection Bands could

29:12

not be enforced against the judge

29:15

unless Congress first past the law

29:17

so that the origin of this

29:19

whole idea that it's non self

29:21

executing Section Three and one justice

29:23

here one of our favorites, Coach

29:25

Cavanaugh, seem to really want to

29:27

make. Griffin's case happen. So let's

29:30

play that clip. Argument

29:32

we reference case is also are

29:34

relevant to trying to figure out

29:37

what the original arm hobbled meaning

29:39

of section three the Fourteenth Amendment

29:41

is spider Chief Justice of the

29:44

United States after the Fourteenth Amendment

29:46

us email me highly provocative of

29:49

what's the meeting or understanding of

29:51

that language otherwise elusive languages. Now

29:53

to be very clear, everyone else

29:55

like brat did. Stop such a

29:58

make Griffin's case. Happen. It's. Not

30:00

going to happen and early in the

30:02

argument. Just as admirer had actually already kind of shredded

30:04

the Griffins case theory of the case, Of she noted

30:06

that Griffin case with not presidential which it is

30:08

and that was a circuit court case that the

30:11

Justice. Who wrote the opinion? Chief Justice Him and

30:13

Chase later went on to write another opinion, but

30:15

this one for the Supreme Court. That disavowed

30:17

Griffin's case and in that subsequent

30:19

opinion issued by again the court,

30:21

she said that section Three of

30:23

the Fourteenth Amendment with Us executing

30:25

and at Jefferson Davis President of

30:27

the Confederacy would be disqualified. Under.

30:29

It's I mean history and tradition, but

30:31

obviously that mattered less to the court.

30:34

the Martha consequential as considerations. I'm in

30:36

one of the thing about Griffin case that I think didn't get as

30:38

much. Attention but that Leah has previously mentioned.

30:40

Is that the steaks of Siding with

30:43

the argument that. The judge was disqualified and

30:45

Griffin's case. Would necessarily have

30:47

invalidated a lot of. Office.

30:49

Holding not just the judge in the

30:51

case And so there are all kinds

30:53

of contacts specific reasons to understand why

30:56

Cheese ruled that the. Provision.

30:58

With not self executing that supplies.

31:00

Yet another reason that the case just cannot

31:02

bear much weight in this analysis. I

31:04

want to go back to something you

31:06

just said Kate About Sam: the whole

31:09

idea of history who tradition, but only

31:11

when we want to take it into

31:13

account. Speaking odd, that selective fidelity to

31:15

history and sense I would love for

31:17

and listeners to check out this memorable

31:19

moment when Justice Sotomayor decided to spend

31:21

a little time in the shade room

31:23

shading. Her colleagues. History.

31:26

Proves. A lot to me and

31:28

to my colleagues generally. Hello

31:30

Peppermint Patty or shall we

31:32

call you Patti Labelle? Either

31:34

way, Justice Sotomayor We. Are. Here

31:36

for the shade all day, every

31:38

day. And. Just the sort of my or was not.

31:40

Alone in trying to give Griffin's case a

31:43

dignified burial, even Amy Coney Barrett basically made

31:45

clear that no, no, Griffin's case is not

31:47

going to do it. She noted that the

31:49

case arose as collateral challenge and hideous, which

31:52

was new at the time and those rules

31:54

were different that she's opening hypo. Also

31:56

revealed some uncertainty about the idea that

31:58

states can't ever disqualify. insurrectionists. So

32:00

let's play that clip here. Counsel,

32:05

what if somebody came into a state Secretary

32:08

of State's office and said, I

32:11

took the oath specified in Section 3,

32:14

I participated in an

32:16

insurrection, and I want

32:19

to be on the ballot. Does the

32:21

Secretary of State have the authority in

32:23

that situation to say no, you're disqualified?

32:27

But we should note that in this

32:29

hypothetical, the state Secretary of State would

32:31

have to keep the about insurrectionists on

32:33

the ballot for president under the Supreme

32:35

Court's seeming theory of this case, unless

32:38

Congress authorized the state to take them

32:40

off. And of course,

32:43

that's one set of arguments that Mitchell and

32:45

Trump made that the court weren't into. There

32:47

was another argument, and that is the one

32:49

Justice Kagan memorably referred to during this argument

32:51

as, quote, the officer stuff. She

32:53

really said that, as you can hear from this clip. Will

32:57

there be an opportunity to do officer stuff

32:59

or should we? Absolutely. Justice

33:04

Kagan is basically referring to the

33:06

idea that Section 3 does not

33:08

apply to President Trump for one

33:10

of two reasons. One reason

33:12

that Jonathan Mitchell and others have made on

33:15

behalf of President Trump is that he has

33:17

never taken an oath to support the Constitution.

33:19

And on that view, the presidential oath is

33:21

a separate and distinct oath from the oath

33:24

that other federal officers might take.

33:27

The other rationale is that presidents

33:29

aren't actually officers of the United

33:31

States. The group of people that

33:33

Section 3 disqualifies and for that

33:36

reason, presidents aren't covered by that

33:38

provision. To be very

33:40

clear, there was virtually no interest in

33:42

this argument, despite the proponent of this

33:45

argument receiving a pretty flattering write up

33:47

in the New York Times the day

33:49

before argument in a profile by Charlie

33:51

Savage. Though, at points, it

33:54

did seem like Neil Gorsuch was a

33:56

little officer-curious, and there were moments where it

33:58

seemed like Justice Jackson may have a very good time. have

34:00

been as well, but it was a little bit hard

34:02

to tell what her opinion was.

34:04

So she was asking about the distinction

34:06

between office, officer, holding office under the

34:08

United States and so on. I thought

34:11

she was a little officer forward curious

34:13

too. Yeah, I mean, she explicitly said something

34:15

actually that John Lovett asked me when I went on

34:17

POD Save America, which is why isn't president written

34:19

in the list? Like it has senators, it

34:22

has representatives, it has electors for president and

34:24

vice president. Why didn't they put president in there?

34:26

And I actually think the historians brief in this

34:28

case, it's Jill Lepore and a bunch of

34:31

other historians, makes really, really clear why

34:33

that was like they were mostly concerned

34:35

about individuals who had already run. There

34:38

were like a bunch of Confederates who had run

34:40

for Congress and then been excluded and

34:42

electors, they were kind of worried about including because

34:44

electors don't take a separate oath. So there were

34:46

very good reasons to include the couple of examples

34:48

you do. And then all other

34:50

officers was just meant to be a catchall. And

34:52

all this other contemporaneous evidence made clear that Jefferson

34:54

Davis was very front of mind. There's newspaper reports

34:57

at the time saying Section 3 is the thing

34:59

that is going to keep Jefferson Davis from ever

35:01

becoming president. And I just don't know

35:03

that that historical evidence was presented in the

35:05

argument to Justice Jackson in a way that

35:07

I think she might have responded to. I mean,

35:10

of course, I'm sure she's read the briefs, but she

35:12

didn't seem satisfied by them. And I was just like,

35:14

wish there had been more engagement with the really excellent

35:16

historical research that was presented to the court. History

35:19

and tradition is to the contrary of the

35:21

court seriously engaging with history and tradition.

35:24

As for the oath question, the idea

35:26

that Section 3 doesn't apply to Donald

35:28

Trump because he hasn't taken an oath

35:30

to support the Constitution because he hadn't

35:32

previously held other federal offices as other

35:34

presidents of the United States had, well,

35:37

Justice Sotomayor had this to say

35:39

about that. You

35:41

argue that even though the

35:43

president may or may not

35:45

qualify, presidency may or may not qualify

35:47

as an office under the United States, your

35:51

principal argument is that the president is

35:53

not an officer of the United States.

35:55

Correct? I would say a

35:57

little more forcefully than what your honor just described. believe

36:00

the presidency is excluded from office under

36:02

the United States, but the argument we

36:04

have that he's excluded the president as

36:06

an officer of the United States is

36:09

the stronger of the two textually and

36:11

has fewer implications for other constitutions. It

36:13

is a gerrymandered rule, isn't it, designed

36:15

to benefit only your client? I

36:17

love her use of the word

36:20

gerrymander. That seemed like a very

36:22

distinct callback to Ruscio versus Common

36:24

Cause, a little more dragging of her

36:26

colleagues. And to that, I can only say, stay petty,

36:30

Justice Sotomayor. And on

36:32

the view that the presidential oath is

36:34

somehow different because it doesn't require the

36:36

president to say that he will, quote

36:38

unquote, support the constitution, but instead requires

36:41

him to say that he will preserve, protect,

36:43

and defend the constitution, we want

36:45

to highlight some previous briefing on the topic

36:47

of the presidential oath from some members of

36:50

the Trump administration. So this

36:52

previous briefing is from the travel ban

36:54

case, where of course, President Trump announced

36:56

a ban on entry by people from

36:59

several Muslim majority countries. And

37:01

in the course of arguing that the travel

37:03

ban was legal, the Trump administration said as

37:05

follows. They said that many

37:07

of the statements the plaintiff pointed

37:09

to that had illustrated the president's

37:11

anti-Muslim bias were made, quote, before

37:13

he swore an oath to support

37:16

and defend the constitution, end quote.

37:18

The brief continues, taking that oath

37:20

marks a profound transition from

37:22

private life to the nation's

37:25

highest public office, end

37:27

quote. I guess, you know, they used to think

37:29

that oath was pretty important, less so now. I

37:31

love that you had those receipts, like a CVS

37:34

style receipt in your back pocket for them. Good

37:36

for you. Leah always comes

37:39

prepared. You know, the DC Circuit

37:41

judges according to receipts. Heather

37:43

Gay lives her life according

37:46

to screenshots, timelines, receipt, and

37:48

so do I. So on

37:51

both the oath point and the officer point,

37:53

which are about whether presidents are subject to

37:55

Section 3, we had Elena Kagan enter the

37:57

chat with the reason why this argument just

37:59

does not hit, namely, why the fuck

38:02

would the one office, the 14th amendment,

38:04

allow insurrectionists to hold be the president

38:06

of the United States? Here is Elena

38:08

Kagan. And if I could just understand, I

38:10

mean, given that you say you don't have a lot

38:12

of evidence that the founding

38:14

generation or the generation that we're looking

38:16

at is really thinking about office versus

38:18

officer of the United States. I mean,

38:20

it would suggest

38:22

that we should ask, is

38:25

that a rule, a sensible one? You know, if they

38:27

had thought about it, what reason would

38:29

they have given for that rule? And

38:31

it does seem as though there's no

38:34

particular reason. And you can think of lots

38:36

of reasons for the contrary. To say that

38:38

the only people who have

38:40

engaged in insurrection who are

38:43

not disqualified from office are

38:46

presidents who have not held high office before.

38:48

Why would that rule exist? Million

38:51

dollar question. Million dollar question. Billion

38:54

dollar question, seriously. And

38:56

you know, in the spirit of taking a

38:58

moment to give ourselves a little pat on

39:00

the back, I'm going to give myself a

39:02

pat on the back for going with the

39:04

Elena Kagan rebuttal to the officer argument from

39:06

the previous episode previewing

39:08

this case. It

39:11

just defies logic. The one thing insurrectionists

39:13

can do is be commander in chief of

39:15

the army. Like that seems a little bit

39:17

odd. And also, you know, the people that

39:19

wrote this provision, one person

39:21

who may have been in their

39:23

minds was, I don't know, the

39:25

president at the time, Andrew Johnson,

39:27

who was basically like undermining reconstruction

39:29

and a Confederate sympathizer. So the

39:31

idea that they would immunize that

39:33

office in particular is absurd. I

39:37

did wonder, Leah, during oral argument, why no

39:39

one mentioned Andrew Johnson at all. History

39:42

and tradition, Melissa. History and tradition.

39:44

Only if it works for you, though. By purpose,

39:47

context and logistics. That is the history

39:49

and tradition. To

39:51

be very clear, it wasn't just the liberal

39:53

justices who had some questions about this. In

39:55

her questions with Jonathan Mitchell, at one point,

39:58

Justice Amy Coney Barrett said, Assume

40:00

I disagree with you about the officer

40:02

claim. And all I could say

40:05

was like not Amy Coney Barrett putting on

40:07

some Aliah Kagan drag, but okay, queen, you

40:09

can do it. And I actually think not only

40:11

was Aliah Kagan and Amy Coney Barrett

40:13

skeptical of this, I kind of thought

40:15

Mitchell was skeptical of his own argument,

40:17

honestly. Like he was suggesting that you

40:20

have both officer and office, and there's

40:22

both the question about whether the prior

40:24

oath is an oath

40:26

of an officer and whether the presidency is

40:28

an office. And he did seem to suggest

40:30

that the officer argument was the one that

40:32

they were mostly relying on because this office

40:34

argument was messy and intersected with other constitutional

40:36

provisions in ways that might be problematic. So

40:38

first he was like, no, we're really focusing

40:40

on the officer, not office. And

40:43

then at some point he seemed to concede there

40:45

wasn't a great rationale for them meaning different things.

40:47

So I am honestly not sure he even, not

40:49

that there's a higher body for whom

40:51

to preserve the argument, but he basically

40:53

seemed to abandon it anyway. So

40:56

those are the arguments that it seems like- He

40:58

dropped it off in a safe deposit

41:00

box by a firehouse. I

41:02

understand. Boom. Boom. All

41:06

that queen Melissa. But

41:08

there were other arguments he was getting traction

41:10

with and so decided just to cut bait

41:12

on the officer argument. Strict

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44:38

were, though, also arguments in Trump's briefs

44:41

that got basically no airtime or very,

44:43

very little airtime. And the most notable

44:45

of these, of course, was whether Trump

44:48

had engaged in insurrection at all. The

44:50

justices basically didn't touch this argument. We

44:52

predicted they would want to mostly steer

44:54

clear, but I still thought it was

44:57

conspicuous how little engagement there was with

44:59

the underlying conduct. And Jackson was the

45:01

exception, right? So she did try to engage Mitchell a

45:03

little bit on why the events of January 6

45:05

weren't an insurrection. Or she

45:08

sort of suggested he had conceded they were, but

45:10

that Trump didn't engage in them. But he

45:12

really pushed back, at least in the argument,

45:14

which led to this memorable exchange we'll play

45:16

here. But for an insurrection, there needs to

45:18

be an organized concerted effort to overthrow the

45:20

government of the United States through violence. And

45:23

this is why it's important that a chaotic

45:25

effort to overthrow the government is not an

45:27

insurrection. We didn't concede that the

45:29

exchange also resulted in, I think, an

45:32

important concession from Mitchell, which is Mitchell

45:34

said the events of January 6 were

45:37

shameful, criminal, violent, all of those things, but

45:39

did not qualify as insurrection as that term

45:41

is used in Section 3. And I'm just

45:44

not sure his client agrees. The other

45:46

argument that did not get a lot of airtime,

45:49

which I thought was surprising, was the

45:51

First Amendment argument, which Donald Trump has

45:53

no pun intended trumpeted ad nauseam. And

45:56

this is the idea that the First

45:58

Amendment precludes posing any

46:00

penalty on him for the events of

46:02

January 6th because he was simply exercising

46:05

his rights to free speech. In

46:07

addition to the arguments that Trump made that

46:09

received no airtime, there are also some arguments

46:12

that weren't in Trump's brief that got some

46:14

airtime at argument, in addition to the argument

46:16

that it seems like the justices are going

46:18

to embrace, that there has to be some

46:21

kind of congressional authorization before this

46:23

disqualification could happen. So

46:25

many of these additional arguments came from

46:27

who else but Samuel Alito, who made

46:29

his feelings about this case. Second here

46:31

is the lectern Samuel Alito. He

46:34

wanted to be first chair, Melissa, because

46:36

he made his feelings about this case

46:38

more than clear, and as always, he

46:40

had a lot of them. Can we

46:42

just stop for a minute? This was

46:45

so wild to me that he was

46:47

actually introducing new arguments as though he

46:49

were like, you

46:51

know, a sixth year associate who had been

46:53

brought in on the case and was really

46:55

checked out, but in fact, he's actually a

46:57

justice to whom they are making these arguments

46:59

and he's literally feeding new arguments to the

47:01

guy at the lectern. This was wild to

47:03

me. Yeah, I mean, on some level, like

47:06

the rest of the court was doing it

47:08

too, because the version of their, you know,

47:10

Congress needs to authorize this disqualification procedure that

47:13

they seem interested in was not really the

47:15

version that Mitchell had offered, though he had

47:17

a related version to it. Yes,

47:20

yeah. I mean, I think so. I left around

47:22

that pretty quickly. He was like,

47:24

no, I've got others. I've got a brief. How about

47:27

these babies? Right. Got

47:29

a few other ones up in my sleeve.

47:31

Let's take these out for a spin. So

47:34

this is Alito floated the suggestion that

47:36

maybe isn't there some structuralist argument by

47:38

which he means some argument not based

47:41

in the text of the Constitution based

47:43

on all of the

47:45

problems that I, Sam Alito, have with

47:47

the Colorado proceedings in this case. So

47:49

let's play the series of clips in

47:51

which he cobbles together this banger. The

47:54

consequences of what the Colorado Supreme

47:56

Court did, some people claim, would

47:58

be quite so. severe of

48:00

would it not permit, would

48:05

it not lead to the possibility

48:08

that other states would say

48:10

using their choice of law rules and

48:12

their rules on

48:15

collateral estoppel that there's

48:17

non-mutual collateral estoppel against former President

48:19

Trump. And so the decision of

48:22

the Colorado Supreme Court could effectively

48:24

decide this question for

48:27

many other states, perhaps all other

48:29

states. Could it not lead to

48:31

that consequence? Yeah, exactly. So

48:34

in this decision, the trial

48:36

court in Colorado thought

48:38

that it was proper

48:40

to admit the January 6

48:43

report and it also admitted

48:45

the testimony of an expert

48:47

who testified about the meaning

48:49

of certain words and phrases

48:51

to people who communicate with

48:53

and among extremists, right?

48:57

Should these considerations

49:00

be dismissed as simply consequentialist arguments

49:02

or do they support a

49:05

structural argument that supports the position

49:07

that you're taking here? In addition

49:09

to his concerns about structuralism,

49:11

Justice Alito was also deeply

49:13

concerned about possible retaliation, which

49:16

is to say that if

49:18

the court allowed Colorado to disqualify

49:20

Donald Trump, then everyone would

49:23

just disqualify political opponents by

49:25

simply saying that they were all

49:27

insurrectionists. And this also seemed a

49:29

bit like an invitation, but let's

49:31

roll the tape. Well, let's change it so

49:33

that it's not after the election. It's three

49:36

days before the election based on the fact that

49:38

the polls in that state look bad. Can

49:41

they do it? And here's another one that

49:43

is brand your political rivals

49:45

and insurrectionists forward. We've

49:48

been told that if

49:50

what Colorado did here is sustained,

49:52

other states are going to retaliate

49:55

and they're going to potentially. exclude

50:02

another candidate from the

50:04

ballot. What about that situation? Trump,

50:07

for one, seemed to be really excited about this

50:09

line of questioning, so he seemed very

50:12

focused in his remarks after the arguments

50:14

about the possibility of just disqualifying people

50:16

by saying they're insurrectionists, because

50:18

in those remarks he suggested that any

50:21

insurrection that might have occurred on January 6th

50:23

was caused by... wait hold. I

50:26

think it was an insurrection caused by Nancy

50:28

Morrison. You get an

50:30

insurrection! You get an insurrection! This

50:33

is doling those babies out.

50:35

So we're also a few Alito remarks

50:37

that might have been difficult to decipher

50:39

if you have not been locked in

50:42

your basement for the last decade watching

50:44

Fox News nonstop, because sometimes you really

50:46

cannot understand what Sam Alito is saying

50:48

unless you put yourself in that position.

50:50

So what do we mean? Well, Justice

50:52

Alito asked a hypothetical about whether states

50:55

could disqualify someone based on the following

50:57

theory. Suppose there's a

50:59

country that proclaims again and again

51:01

and again that the United States

51:03

is its biggest enemy.

51:05

And suppose that the President of

51:07

the United States, for diplomatic

51:10

reasons, think that it's in the

51:12

best interests of the United States

51:14

to provide funds or

51:16

release funds so

51:19

that they can be used by that

51:21

country. Could a state determine

51:25

that that person has given aid

51:27

and comfort to the enemy and

51:30

therefore keep that person off the ballot? And

51:32

if you're thinking to yourself, how did he

51:34

come up with this one? Well, listeners, let

51:36

us enlighten you. WTF? Exactly.

51:39

If you consume Fox News nonstop,

51:42

you are aware that there is

51:44

a suggestion out there in that

51:46

metaverse about how President Biden may

51:49

have given money to Iran and

51:51

that this is some huge constitutional

51:53

crisis. And so this is Sam

51:55

Alito channeling that theory and suggesting,

51:58

well, maybe states would. go ahead

52:00

and disqualify Biden because he

52:02

gave money to Iran. Again,

52:05

you truly cannot understand this

52:07

man unless you watch

52:09

Fox News nonstop and just

52:11

scream at the television like

52:13

an angry old Fox News

52:16

grandpa. No question about how

52:18

this guy is voting. That's where he lives. When

52:20

I heard this, all I could think about was

52:22

303 Creative and Black Santa, and now when he

52:24

said that in the argument for 303 Creative,

52:26

all we could think of was, he's

52:29

definitely been listening to Megyn Kelly's podcast.

52:32

This guy does nothing but watch Fox

52:34

News nonstop. Yes, right, which raised the

52:36

question for me, which was, is there a way for him

52:38

to rule against Trump but

52:40

preserve a state's ability to

52:42

exclude Biden from the ballot because of his

52:45

funding of Iran? I

52:47

mean, he's gonna try to write something that does that. Yeah, that's the

52:49

concurrence. He's gonna have a separate writing that just

52:51

is one footnote. Fuck Joe Biden.

52:54

Bring it on. The Let's Go Brandon

52:57

theory. Yeah, so Let's

52:59

Go Brandon footnote in the US report.

53:02

Do it and be a legend. Just do it, Sam.

53:06

So a few other notes on what did

53:08

and didn't happen in the arguments. There was

53:10

a memorable exchange between Justice Alito and Justice

53:12

Kagan during Jonathan Mitchell's argument, which we're not

53:15

going to play, but

53:17

the two justices basically went

53:19

back and forth with each other about whether

53:21

Mitchell's arguments were in tension with one another,

53:24

revealing kind of once again

53:26

that the justices between sitting

53:28

breaks and maybe holiday break

53:31

may not have, let's say,

53:33

solved or cured all wounds.

53:36

Well, so I have a question because when I heard

53:38

this colloquy, when Sam Alito was like, there's no tension

53:40

and Justice Kagan was like, no, there is tension.

53:42

And I was like, are you talking about Jonathan

53:45

Mitchell's argument or is there something else going on?

53:47

It just seemed to be about this. Didn't you?

53:50

A little. There was tension. We have

53:52

tension. No, we don't. Yes, we

53:54

do. This is Elena Kagan's secret cry for

53:56

help. She is blinking twice and she needs

53:58

people to pick up. Yeah, exactly. Well, it's

54:01

both Alito and then Jonathan Mitchell, some genius at

54:03

the lectern. I

54:08

think the combination of those two, I think, were maybe

54:10

put her over the edge. She had this, I thought,

54:12

really kind of funny. How did she keep it

54:15

together? How did she keep it together? This

54:17

is why she's qualified to be a justice.

54:19

There was this funny moment that sort of

54:22

involved her kind of lightly ribbing some law

54:24

professors and not so lightly, I thought, ribbing

54:26

Jonathan Mitchell in his response to her. So

54:28

let's play that clip here. Yeah, there certainly

54:30

is some tension, Justice Kagan, and some commentators

54:32

have pointed this out. Professor Bode

54:34

and Professor Paulson criticized Griffin. Then I

54:36

must be right. Well, we don't think...

54:40

Then I must be right. Well, if your

54:42

law professor friend said it, Jonathan, then I

54:44

guess that means I made a good point. So

54:46

thank you, because that was kind of what she seemed

54:49

to be saying when he interjected by invoking the Bode

54:51

and Paulson article. She was fiery. Yeah,

54:53

this is maybe against interest, but respect,

54:56

Elena, respect for this nag. Additional

54:59

note from me, I think

55:01

Clarence Thomas needs to reread

55:03

Eric Foner's history of Reconstruction.

55:05

So here was Justice Thomas's

55:07

capital summary of that history.

55:10

You look at Foner or Foot,

55:13

Shelby Foot or McPherson, they all

55:15

talk about, of course, the conflict

55:17

after the Civil War. And there

55:19

were people who felt very strongly

55:22

about retaliating against the

55:25

South, the radical Americans,

55:27

but they did not think

55:30

about authorizing the South to

55:32

disqualify national candidates. If

55:35

you actually read Foner, you would

55:37

note that Foner is saying actually

55:39

the idea that Reconstruction

55:42

was about retaliation against the South

55:44

was the product of the Dunning

55:46

School of History and the counter

55:48

movement of redemption. That's not actually

55:51

what Reconstruction was about. So

55:53

again, maybe just like go back and read

55:55

it again one more time, a little bit

55:58

more closely at another point. just

56:00

Kavanaugh suggested the word and maybe

56:02

even the concept of insurrection was

56:05

inscrutable. So let's play that clip.

56:07

Well, when you look at Section 3,

56:09

the term insurrection jumps out. And

56:12

the question is, the questions are,

56:15

what does that mean? How do you define

56:17

it? Who decides? Who

56:20

decides whether someone engaged in it? What

56:23

processes, as Justice Barrett alluded

56:25

to, what processes are appropriate

56:28

for figuring out whether

56:30

someone did engage in that? I thought

56:32

this was very interesting, like a very interesting

56:34

take from a justice who's about to fucking

56:37

overrule Chevron or at least limit it substantially

56:39

and insists there are never really any ambiguities

56:41

in statutes and courts should just decide what

56:43

every word and phrase in a statute mean

56:45

because it's always going to be perfectly clear

56:47

even though the law might not provide clear

56:49

answers to that. And yet here he's like,

56:52

yeah, word insurrection in the Constitution, don't know

56:54

her, can't do it. It works

56:56

on levels, Leah. I see. Basically what

56:58

he's thinking. I mean, onion, many layers. This

57:01

is why I'm crying constantly. Something

57:05

they did not come up at argument,

57:08

but that had been playing out in

57:10

the leadup to the argument is a

57:12

dynamic that Kate had earlier noted this

57:14

entire term. And that's the fact that

57:16

this entire court seems to be shadowboxing

57:18

with the ghost of Justice Scalia, which

57:20

is an interesting way to spend

57:23

your time. Specifically, throughout this argument,

57:25

there were debates about whether Justice

57:27

Scalia's writing in Noel Canning, which

57:29

is a case about racist appointments,

57:31

signaled that Justice Scalia believed that

57:33

presidents are in fact officers of

57:35

the United States. The

57:37

proponent of the theory that presidents are not

57:39

officers actually wrote to Scalia something to the

57:41

effect of you wrote this in Noel Canning,

57:44

but you didn't mean it, right?

57:46

And Scalia apparently wrote back saying, basically, I

57:48

said what I said, bitch. And

57:51

then people have been using that

57:53

exchange, including the private correspondence, which

57:55

was at least shared publicly as

57:57

evidence to rebut the officer theory.

58:00

because we all know that if Justice Scalia

58:02

thought something and signaled it in an opinion,

58:04

it can't possibly be wrong. So

58:06

I thought all of that was, again, really

58:09

fascinating and, you know, good on you,

58:11

Kate, for calling this early and often. But

58:13

yes, a lot of people shadow dancing with

58:15

a dead justice. Well, and I thought

58:17

that there was a better thing. Shadow dancing is a

58:19

different thing. I like it. Maybe

58:21

they're doing both. Maybe both.

58:24

Both. They're dancing on the

58:26

shadow docket with a shadow boxing Justice

58:28

Scalia. With the shadow in the

58:30

shadow room, I don't know. But

58:33

honestly, like the fixation on this correspondence

58:35

from Justice Scalia and, you know, his

58:37

separate writing in Noel Canning made me

58:39

wonder in the lead up to this

58:41

argument about whether a fair number of

58:43

people in maybe the conservative legal movement

58:45

have daddy issues. And I

58:47

still wonder that. But the fact that the court

58:49

didn't seem interested in this, I think, was more

58:51

of a reflection on their lack of interest in

58:53

the officer argument than the fact that they themselves

58:56

don't have daddy issues. So that's just... I

58:58

was armchair of psychology. I

59:00

was mule. Exactly. I was

59:03

Justice Scalia's favorite. Well, exactly. Like they basically had this fight

59:05

in box office. And you got Mitchell up there too, he's in the mic. The Title VII

59:07

case, right? Like who is

59:09

Justice Scalia's heir? Well, Mitchell, Clark, yes. You're

59:11

Justice Scalia's heir. I know. He

59:13

was the favorite all along. I'm telling you, I'm telling you,

59:15

daddy issues. So as

59:18

happens with some frequency, there was a

59:20

competition between Justice Alito and

59:22

Justice Gorsuch on who could be the bigger jerk,

59:25

mostly to Jason Murray, who was arguing to

59:27

support the Colorado Supreme Court decision. So here's

59:29

entry number one in that competition. No,

59:31

no, we're talking about section three. Please

59:33

don't change the hypothetical, okay? Please

59:36

don't change the hypothetical. I know I like doing it too,

59:38

but please don't do it. And

59:41

here's entry number two. You're really not answering my

59:43

question. It's not helpful if you don't do that.

59:45

They should try smiling more. That's my first

59:47

piece of advice. Or they should just listen

59:50

to when Elena Kagan or Katonji Brown Jackson

59:52

say this sort of stuff because they managed

59:54

to do it savagely, but also nicely. I

59:56

will just say that Jason Murray clerked

59:58

for Justice Gorsuch. So, the

1:00:01

fact that you could do this to your

1:00:03

own clerk publicly means that you are an

1:00:05

equal opportunity destroyer, and I guess that's something.

1:00:07

So, good on you. I wonder if he

1:00:10

even turned it up just to suggest that

1:00:12

he was not partial. I don't know, maybe,

1:00:14

but he was really hard on Murray, and

1:00:16

I was surprised. But again,

1:00:18

equal opportunity, as you say. Jason

1:00:21

Murray also clerked for Justice Kagan, so

1:00:23

maybe this is the payback

1:00:26

for Jason Murray being a little bi-curious

1:00:28

on both sides of the aisle. Hah,

1:00:31

disloyal and insurrectionist, as they say,

1:00:33

and you'll gort such as about

1:00:35

to disqualify him. Exactly.

1:00:39

All right, that

1:00:41

was the oral argument. It was kind of a shit show.

1:00:44

It didn't take nearly as long as I thought

1:00:46

it was a shit show. That was really surprising,

1:00:49

which to me suggested that they already know where

1:00:51

this is going. They just have to map

1:00:53

out on MapQuest how they're going to get there.

1:00:56

I know, they take two hours for routine matters

1:00:58

these days, so a case that important to take

1:01:00

only two hours, it suggested to me that they

1:01:02

were just kind of perfunctory about a lot of it.

1:01:06

They were not going, not that I wanted

1:01:08

seven hours by any means, but it was

1:01:10

such a lazy set of arguments, set

1:01:12

of questions. I'm not lazy in the advocates. I

1:01:14

love everything, obviously, but I just couldn't

1:01:16

believe how sort of disengaged and uninterested, given

1:01:18

the stakes of this case, they were, and they

1:01:20

were just like, it would be a mess, and

1:01:23

so let's just find a rationale and be done

1:01:25

with it. It seemed to be

1:01:27

like the TLDR of the argument. There was almost just sort of like,

1:01:29

couldn't you just do this on the papers and submit it

1:01:31

on the shadow docket, and we could just issue

1:01:33

a ruling, like a perfunctory, parturium ruling and

1:01:36

just get this done. To me,

1:01:38

it wasn't just that they were just, oh, wouldn't this

1:01:40

be bad? Let's consider the implications. There

1:01:43

was no counter on the other

1:01:45

side to engage with the potential

1:01:47

for implications of just

1:01:49

giving this entire decision to Congress,

1:01:52

given the partisan nature of recent

1:01:54

impeachments, if senators not

1:01:56

willingly convicting someone for reasons

1:01:59

unrelated to... factual innocence or

1:02:01

things like that, or thinking

1:02:03

about, well, if we say this,

1:02:05

does this mean states couldn't prevent

1:02:07

a third-term president from running for

1:02:09

office or couldn't prevent someone who

1:02:11

doesn't meet the age requirements from

1:02:13

running for office or couldn't prevent

1:02:15

someone who doesn't meet the residency

1:02:17

or citizenship requirements for running for

1:02:19

office? Like, they didn't really flesh

1:02:21

out how are we going to

1:02:23

cash this theory out, given competing

1:02:25

considerations on the other side or

1:02:27

potential implications of this position? I

1:02:29

don't know. Because they know,

1:02:32

I mean, again, pragmatism is going

1:02:34

to direct the outcome here entirely.

1:02:36

This is going to be decided

1:02:38

based entirely on practicalities. You cannot

1:02:40

allow Colorado to do this because

1:02:42

there are 34 other states where this is going to

1:02:45

be an issue, and then that is actually

1:02:47

chaos. And so my

1:02:50

guess in terms of a prediction is exactly what

1:02:52

I said before. Donald Trump is

1:02:54

going to win here. This is the

1:02:56

Colorado Supreme Court will be overruled.

1:02:58

And I think the real question is just sort

1:03:00

of how they do it. We've

1:03:02

already gestured toward the

1:03:05

line of argument and the rationale, but I'm

1:03:07

not sure this is going to be entirely

1:03:09

unanimous, or if it is unanimous, I think

1:03:11

there – I am pretty sure Justice Sotomayor will

1:03:13

write a separate concurrence to sort

1:03:16

of articulate some of the concerns

1:03:18

she had around gerrymandering this whole

1:03:20

argument to only apply to Donald

1:03:22

Trump. I think this has to

1:03:24

be a univocal kind of opinion that the chief will

1:03:26

try and get from a long-long court. I

1:03:28

think there is a lot of pressure on that, and I think it will

1:03:30

be 9-0 or 8-1. I

1:03:32

think it's possible there will be separate writings, either

1:03:35

saying maybe these other theories would do the trick

1:03:37

as well, or this opinion is more limited and

1:03:39

we're not answering these following

1:03:41

questions. But I

1:03:43

also think it's going to be a quick opinion. I think

1:03:46

we are going to get this in short order, again, given

1:03:48

that they seem to have coalesced around a theory. It might

1:03:50

have been written before this argument. That is also, honestly, what

1:03:52

I thought once the chief justice stepped in during

1:03:54

Jason Murray's argument and just said, like, how about this

1:03:56

theory? And then everyone was like, yeah, that's a good

1:03:58

one. And I do really

1:04:01

hope that the Democratic appointees

1:04:05

manage to get an agreement not

1:04:07

to say the DC Circuit opinion

1:04:09

and just to let it stand,

1:04:12

because getting a unanimous opinion, restoring

1:04:14

Trump to the ballot, is

1:04:17

a huge win for the

1:04:19

Republican appointees, for Donald Trump,

1:04:21

the Republican Party. And

1:04:23

it eliminates a method of

1:04:26

holding Trump accountable. And given that this

1:04:28

other case is about the same idea,

1:04:30

and everybody knows there are

1:04:32

zero legal arguments there for Trump to

1:04:35

actually be immune, and the entire game

1:04:37

is whether the trial can happen

1:04:39

before the election, they need to ensure

1:04:41

that that happens. A couple things

1:04:43

just to go back just a minute in terms of

1:04:45

frustrations with arguments not really surfaced. I

1:04:48

thought not only the lack of kind of

1:04:50

countervailing consequentialist arguments with respect to

1:04:52

other constitutional provisions or what it

1:04:54

means to insulate from this kind

1:04:56

of accountability and insurrectionist, that was really

1:04:59

frustrating. But I was also, when I let

1:05:01

myself think about it, just like boiling with

1:05:03

rage at the selectivity of interest and

1:05:05

consequences when you think about the court's

1:05:08

dob's opinion or Bruin opinion, it's

1:05:10

like it's totally inappropriate for us to

1:05:12

think about people dying, kids dying, school

1:05:14

shootings. None of that matters. What matters

1:05:16

is this very austere examination of history

1:05:18

and tradition, except when we do want

1:05:21

to think about consequences, and then that's

1:05:23

all we'll talk about. We won't even

1:05:25

really pretend that the text and

1:05:27

the history matter here, and it's

1:05:29

just so hypocritical it was enraging.

1:05:31

So that I found deeply, deeply frustrating.

1:05:34

And I do, I totally agree with you in terms

1:05:36

of, I don't think it's going to be 9-0,

1:05:38

I think it'll be maybe 7-2 or maybe 8-1, but maybe

1:05:40

all of the liberals will say,

1:05:42

yeah, and I don't think this is inappropriate.

1:05:44

It matters as an institution that here we speak with

1:05:46

one voice, but it also matters as an

1:05:48

institution that we permit this process

1:05:50

to go forward. Do not block all efforts

1:05:52

to hold Trump accountable. By

1:05:55

not essentially signing off on a delay

1:05:57

tactic that will functionally insulate this from

1:05:59

a trial because it's all about the

1:06:01

same conduct. So I think they love, you

1:06:04

know, refuting any suggestion that they do horse trading along

1:06:06

those lines. And I think they mostly don't. But

1:06:08

here, the two cases are coming up together,

1:06:11

essentially, and they're about the same conduct and

1:06:13

the same person. And I just don't think

1:06:15

they can separate out the consideration. So I

1:06:17

do think that it's And the same issue

1:06:19

of accountability. And like, again, all of the

1:06:21

justices were assuming in this

1:06:23

case that one mechanism for

1:06:25

enforcing Section 3 of Congressional

1:06:28

legislation, specifically, Congressional prohibitions on

1:06:30

insurrection. And so they need

1:06:32

to actually let that happen.

1:06:35

One other thing to just put out into the

1:06:37

ether as they're drafting this opinion, you know, unanimous

1:06:39

or close, is that I would

1:06:42

really, really like it sort of prayers just

1:06:44

like out into the ether for something making it

1:06:46

into the opinion that the 22nd Amendment is half

1:06:48

executing, and that even puts

1:06:50

down a marker in this opinion that

1:06:52

other accountability mechanisms for insurrectionists like

1:06:55

criminal prosecution are not foreclosed.

1:06:57

And it would be fantastic if

1:06:59

this opinion also quietly dealt a

1:07:01

death blow to the independent state

1:07:03

legislature theory. So those are the

1:07:05

things that I think could be silver linings,

1:07:07

if in fact, this ends up a unanimous

1:07:09

or near unanimous victory for Trump. There

1:07:12

you go. Our favorite little

1:07:14

optimist finding silver linings everywhere.

1:07:19

100%. They are not going to drop in. Well, hoping for them.

1:07:21

I haven't found them yet. Again, I think

1:07:23

everything that you all have said is exactly

1:07:25

right. And the separation of powers argument that they seem

1:07:27

to be sort of putting forward, like this is something

1:07:29

for Congress to do. This isn't something that should be

1:07:31

handled by the courts. You could say

1:07:34

the flip in the criminal prosecutions, like this

1:07:36

actually is something for courts to deal

1:07:38

with, and courts should be allowed to go

1:07:40

through the process of holding him accountable in

1:07:42

a criminal prosecution. And we're not going

1:07:45

to get that either. So I mean, I think this is probably

1:07:47

already written. It's already in the

1:07:49

can. It's probably pretty bare bones

1:07:51

and perfunctory and it'll overrule Colorado

1:07:53

without saying much more about accountability

1:07:56

or what happened on January 6th.

1:07:59

On that. final bleak

1:08:01

note, that's probably all we have time

1:08:03

for before we go. I joined

1:08:06

What A Day's Juanita Toliver on Wednesday

1:08:08

to break down the federal appeals court's

1:08:10

decision about whether Trump could be tried

1:08:12

as a citizen and to discuss what

1:08:14

happens next. You can listen to that

1:08:16

episode out now on the What A

1:08:18

Day feed. Second, Crooked's newest limited series,

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Dissident at the Doorstep, just dropped a

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to new episodes of Dissident at the Doorstep every

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1:08:42

Strict Certainly is a Crooked Media production hosted

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