ScotusBlog sets the stage:
The Supreme Court will hear oral arguments on Thursday in what is shaping up to be the biggest election case since its ruling nearly 25 years ago in Bush v. Gore. At issue is whether former President Donald Trump, who is once again the front runner for the Republican nomination for president, can be excluded from the ballot because of his role in the Jan. 6, 2021, attacks on the U.S. Capitol.
Although the question comes to the court in a case from Colorado, the impact of the court’s ruling could be much more far-reaching. Maine’s secretary of state ruled in December that Trump should be taken off the primary ballot there, and challenges to Trump’s eligibility are currently pending in 11 other states. Trump warns that the efforts to keep him off the ballot “threaten to disenfranchise tens of millions of Americans” and “promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead.” But the voters challenging Trump’s eligibility counter that “we already saw the ‘bedlam’ Trump unleashed when he was on the ballot and lost.”
Instead of posting on The Bad Place, I will posting real time updates on this thread! Both my typical snarky commentary and tweets from smarter legal folks who are covering the hearing.
This post will be updated as the hearing progresses.
Background on the lawyer representing Trump:
first argument from Trump counsel: “the president isn’t an officer of the United States”
Oh. Novel position from Trump’s lawyer.
Kagan seems very incredulous of Mitchell’s argument.
Unrelated observation: Half of twitter thinks Trump’s lawyer is doing great. The other half thinks he is a dumpster fire.
Yes, she is like WUT ARE YOU SAYING?
Alito throwing Trump’s lawyer a lifeline…asking if a state is “adding an additional requirement” for running for president by enforcing Sec. 3. Does the provision apply only to “holding” office or can it be enforced by preventing someone from running at all?
Justice Sotomayor: “There’s a whole lot of examples on states relying on Section 3 to disqualify insurrectionists for state offices and you’re basically telling us that you want us to go two steps further, maybe three, you want us to say that self-execution doesn’t mean what it generally means. You want us now to say it means that Congress must permit states or require states to stop insurrectionists from taking state office and so this is a complete pre-emption that is very rare, isn’t it?”
Sotomayor goes farther and asks if Mitchell is saying it’s ok to run for a 3rd term or run for office at age 34. “Oh nooooo” Mitchell says about 3rd term, but sure…run for office at 34, as long as you are 35 on Inauguration Day,
Slippery slope here.
They ask if they can cover “The Officer Stuff” (Kagan and Brown, I think) and everyone bursts out laughing. A nice moment of levity.
The Justices are SUPER engaged in this hearing. At a few points, they have jumped in to talk over each.
Jackson talking about “textualist arguments” and referencing 2 parts of the first sentence of the clause. She is DIVING IN.
This is the correct observation.
LOL Mitchell continues to say that the Presidency is not an Officer or something word salad. But Kagan points out that it is not affirmatively argued in the blue brief. But he says it is in the reply brief.
Gorsuch jumps in. He has a good voice for radio. Just an observation.
Back to the hearing.
Gorsuch asks about the “distinction between office, and officer.” He wants to know why the two terms so closely related should be given such different weight?
Roberts has a technical question. Alito back with a lifeline about using this section to bar federal officers. He is SO in the bag for Trump, he should just sign up as co-counsel.
We are on The Officer Question
I agree, Mitchell is doing pretty badly.
Beer loving Brett Kavanaugh is up. Hard to read him. He is either throwing a lifeline or not. He is better than most of the right leaning justices at asking questions in a way that doesn’t show his cards.
Barrett seems surprisingly incredulous of Mitchell’s arguments.
Oh, she brings up the right of due process and points out that Mitchell didn’t address that in his argument or briefs.
Jackson is back on the Office Situation. She is really on this and I love it.
Although this hearing is interesting and clearly groundbreaking, I agree with this prediction. Sadly.
Jackson pushing Mitchell on the word “insurrection.” Trump’s lawyer says it was a “riot.”
And he is done.
On to Colorado attorney, Jason Murray. He already sounds better prepared and more confident.
We will learn a lot more about where the justices are leaning based on their questions. This is THE BALLGAME, folks.
Thomas is up first. Ugh, he is asking for examples of states barring people from NATIONAL offices during the post confederacy time…CO lawyer admits there were state level office candidates being barred, but not national. Not having an example does not mean this argument isn’t valid, but Thomas is trying to find a reason.
Roberts leaning into this. The 14th amendment is more about the state. UGH.
Alito and Thomas are getting HUGE vacations on yachts and maybe new vacation homes after this hearing.
Side note. It is amazing how the conservative justices think state’s have rights to control a woman’s body, but not to control their own elections.
Not going well.
Gorsuch leaning into the difference between RUNNING for office and HOLDING office and how they can ban someone from RUNNING.
Conservative justices leaning into why this has been dormant for so long. CO attorney leaning hard into the fact that THIS HAS NEVER HAPPENED BEFORE and January 6th was truly awful.
Good lord, they are really trying to find an off ramp to save Trump.
Gorsuch gets heated and throws a mini tantrum.
The CO attorney is doing a really good job defending his position, even in the face of such clearly biased questions from the conservative justices. Gorsuch and Alito both came at him, guns blazing.
It is clear that this hearing is not going well for CO. I predict 9-0 or 8-1 to reverse. What a shame for our country. If even the Supreme Court is ok with allowing an ACTUAL INSURRECTIONIST to remain on the ballot to seek the highest office in the country, what is to stop Trump (or anyone else) to do it again?
Kavanaugh now bringing up due process.
CO attorney reminds everyone that Trump had every opportunity to testify and didn’t.
Kavanaugh zips right past that and talks about how Congress/courts can handle insurrection through their own means. Oh, we are back to federal prosecution of insurrectionists.
DOJ should have charged Trump with insurrection on Jan 21st, 2021. That’s all I am going to say about that.
The flogging of the CO attorney has finally ended after an hour.
10 minutes for the last attorney (Stevenson). CO Solicitor General.
I hope this part goes fast. 2 hours of this rapid fire questioning is DIFFICULT to keep up with and your girl Red needs a nap.
The justices even seem tired. Send us all tylenol and/or alcohol.
Ok, back to Mitchell for rebuttal.