The Supreme Court certainly seems eager to put Trump back on the ballot in the Trump v. Anderson case


Two things were clear Thursday morning at the Supreme Court, where the justices considered whether former President Donald Trump is unfit to hold the presidency because of his role in inciting the Jan. 6 insurrection at the U.S. Capitol.

For one thing, Jonathan Mitchell, the lawyer representing Trump, was in over his head. During Mitchell’s time on the stage, the judges took turns criticizing her arguments – or even criticizing her for abandoning strong legal arguments in favor of weaker ones. Mitchell also made embarrassing concessions, admitting that he had no historical evidence to support some of his key claims.

The other obvious thing is that it didn’t matter: Trump was going to win. After Mitchell left the stage, after emphasizing two arguments that almost all of the justices considered weak, the court spent the rest of the argument trying to come up with a better reason to rule in Trump’s favor.

in this matter, Trump vs. AndersonThe Colorado Supreme Court determined that Trump should be removed from the presidential race under a provision of the 14th Amendment that bars former high-ranking officials involved in “insurrection” from serving in office again.

It appears that the Court could rule that this decision was erroneous because unlike federal courts or Congress, state courts cannot determine that a presidential candidate is ineligible. As Obama appointee Justice Elena Kagan said at one point, the question of who can seek the highest federal office “feels very national to me” and thus should be resolved on a federal platform.

Most of the judges made similar arguments. A major concern raised by many justices is that if each state is allowed to determine whether a candidate is ineligible for the presidency, competing decisions could lead to competing conclusions.

For example, Justice Amy Coney Barrett was concerned that each state’s courts would have different evidentiary rules, and would gather different records when they heard lawsuits challenging a candidate’s qualifications. Worse, because the Supreme Court must generally defer to the trial court’s fact-finding process, judges may be “stuck” with the factual findings reached by the “first mover” state – even if those findings are wrong.

Similarly, Chief Justice John Roberts warned that some states would maliciously use the power to disqualify candidates. “I expect a large number of states will say ‘No matter who the Democratic nominee is, you’re off the ballot,'” Roberts predicted.

Therefore, there is a strong possibility of Trump winning. And it appears that he will win on the basis that no single state should be able to determine who runs for federal office.

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Open questions are how the Supreme Court will present the legal arguments to justify this outcome, and whether they will allow the disqualification issue to be raised again in federal court.

Trump’s lawyer gave judges nothing to work with

Mitchell is best known as the architect of Texas’ SB 8, the unusual anti-abortion law that allowed bounty hunters to collect potentially unlimited bounties from abortion providers. He is the type of lawyer who favors pedantic, highly technical arguments that read legal texts to yield surprising or even absurd results.

This tendency was on full display during Mitchell’s 40 or so agonizing minutes on the Supreme Court stage, where Mitchell focused on two arguments.

The first relies on the fact that the 14th Amendment states that a former “officer of the United States” cannot serve in office again if he engages in insurrection. Mitchell claims that the President is not such an officer – so the implication of his argument is that the Vice-President’s officers cannot engage in rebellion, but if the Commander in Chief of the Army does so, there are no consequences. .

But only Justices Neil Gorsuch and Ketanji Brown Jackson appeared open to this counter-intuitive reading of the Constitution. Jackson is a Biden appointee, and his willingness to consider this argument was the biggest surprise of the day: He had a theory that the framers of the 14th Amendment wanted to “prevent the South from rising again” primarily by winning “local elections.” Were worried about. As opposed to national.

Mitchell’s second argument was even more foolish. He claimed Colorado could not disqualify Trump from the ballot because the 14th Amendment allows Congress to remove an insurgent candidate’s disqualification by a two-thirds vote. Mitchell argued that Congress could hypothetically vote to disqualify Trump before he takes office, so Colorado could not disqualify him now.

This argument fell flat with the judges. Even Justice Samuel Alito, typically the Court’s most reliable Republican partisan, scoffed at Mitchell’s claim – likening it to a criminal defendant who claims they can’t be prosecuted because a There is a hypothetical possibility that the Governor may pardon him.

So it was possible to hope, if you’re eager to see Trump disappear from American political life, that the court might rule against Trump when Mitchell completed her argument. The decision was an embarrassment to the former president’s lawyers, and left the justices without any serious argument from which to write an opinion in Trump’s favor.

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But then a majority of the justices spent the second half of the argument trying to rule in Trump’s favor somehow.

The Court is likely to rule that state courts cannot decide who is ineligible for the presidency

Some judges trotted out their own outlandish theories for how Trump could prevail. For example, Justice Brett Kavanaugh exerted great influence on again in griffin (1869), an opinion written after the Civil War by Chief Justice Salmon Chase, when Chase was temporarily serving on the lower court, stating that “it is necessary for Congress to make a law” to enforce the disqualification provision of the 14th Amendment “.

Similarly, Justice Jackson advanced his argument that the framers of the 14th Amendment were primarily concerned with Confederates worming their way into lower offices—a position that no other justice found persuasive.

But the most common concern, raised repeatedly by several justices, was that a state court should not decide who should serve as president – ​​even if there is a constitutional provision disqualifying certain candidates. .

The biggest obstacle facing judges who want to reach this conclusion is that the text of the Constitution doesn’t actually support it. The language of the 14th Amendment does not distinguish between state and federal proceedings. It merely declares that certain former officials who “have been involved in rebellion or insurrection” may not hold office again.

Shortly after Jason Murray, the attorney representing Colorado electors who claimed Trump was disqualified, took the stage, Justice Clarence Thomas suggested one way the court could reach its preferred outcome. Thomas asked whether there was any precedent in the period immediately following the post-Civil War ratification of the 14th Amendment where a state declared that a federal candidate was ineligible for office.

Murray pointed to an example where the Governor of Georgia refused to certify the election of a former Confederate to Congress, but he was not able to cite another example – although he had an explanation for why such Some examples exist why.

According to Murray, the United States did not begin using modern ballots until the 1890s. Previously, voters would write names on a paper or submit a pre-printed ballot given to them by their party, rather than choosing from a list of candidates on a ballot paper provided by the state. For this reason, he argued, the state court had no occasion to rule that an ex-Confederate should be excluded from any particular ballot.

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However, Thomas did not seem satisfied with this explanation, and found a lack of contemporaneous evidence that the 14th Amendment was understood to permit state prosecution. Trump vs. Anderson As positive.

Meanwhile, Chief Justice Roberts suggested another argument for the ruling that Trump cannot be thrown out by a state court. He said, a large part of the 14th amendment has been imposed restrictions On state power. For example, the amendment prohibits states from denying individuals due process or denying them “equal protection of the laws.” Meanwhile, amendments spreading Federal power, by giving Congress the authority to enforce its own sanctions against the states.

Given this structure, Roberts argued that the 14th Amendment is “the last place you would look” for a provision authorizing a state to do anything, let alone remove a federal candidate from the ballot. In Roberts’s mind, the amendment focuses solely on limiting state authority.

In any event, enough justices expressed concern about what would happen if each state had to decide whether Trump (or President Joe Biden, for that matter) could seek the presidency, that it appears that. The court will come up with a reason to say this. States can’t do this. Perhaps that argument will resemble Thomas’s historical claims, perhaps it will resemble Roberts’s more structural argument, or perhaps it will be something else entirely. But the justices’ practical concerns about allowing these cases to be decided by the states appeared to outweigh any concerns they had about the text of the Constitution.

Of course, the big looming question, if the Court rules that state courts can’t decide whether Trump is disqualified, is what happens when someone inevitably files a federal lawsuit presenting the same legal arguments. Are Trump vs. Anderson. Similarly, what if Trump is convicted of attempting to steal the 2020 election, and the trial judge determines that ineligibility for office should be part of his sentence?

If the Court’s decision limits what state courts can do, these questions will still loom large over the 2024 election. And Michelle’s disappointing performance on Thursday shows that Team Trump doesn’t have remotely plausible answers to these questions.


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