The Court convenes February 8 for an extraordinary Thursday session to hear arguments in Trump v. Anderson, in the specific issue of Donald Trump’s eligibility to be on the Colorado ballot for Republican candidate for the Presidency of the United States, with obvious nationwide implications concerning Section 3 of the Fourteenth Amendment. I normally save my independent analysis for cases that have not already received such vast public attention, but this time I want to highlight some legal issues and lines of argument that may have been drowned out in the political talk and even some of the more law-oriented coverage. (Although I’ll still mostly recommend reading those who have really done the hard work!)
I read the Trump petition and found the vast majority of the claims to be without merit. As Akhil Amar put it in previewing the analyses he fully develops later in his amicus brief:
Of course the president is an “officer” covered by Section Three. Of course a detailed congressional statute is not necessary to implement Section Three. Of course an ineligible person is ineligible unless and until amnestied. Of course a person can engage in an insurrection with words as well as deeds. Of course an insurrection can begin locally.
– Amicus Curiae Brief of Akhil Reed Amar and Vikram David Amar in Support of Neither Party
I’ll add that I’ve found the focus on a precise definition of engaging in insurrection frustrating given that the Amendment also imposes ineligibility on those who have “given aid or comfort to the enemies” of the Constitutional order.
I recommend beginning with that Amar brief, which itself begins by discussing how a pre-Civil War insurrection that parallels January 6 was on the minds of the Radical Republican drafters and makes clear that such actions were meant to be disqualifying after the Reconstruction Amendments. Those and other analyses are buttressed by another group of law scholars. And I strongly recommend a really compelling brief on the history and original intent of the 14th Amendment written by a group of historians (all of whom “are elected members of the American Academy of Arts and Sciences and winners of either the Pulitzer or the Bancroft Prize or both,” and two of whom gave an NPR interview on this).
The more difficult question is whether Trump’s current ineligibility to hold office means that he is also ineligible to run for office. The Amendment uses the word “hold” and provides that Congress may vote to remove that ineligibility; presumably that vote could come even after an election. So at first blush, this appears to be Trump’s strongest argument. But as the top quote signals, Amar handily dispatches that argument, too.
Among the many good arguments on this is an important federalism overlay that I think is often missed — and it’s intriguing to see states’ rights lining up the way it does in this case. It is perfectly reasonable for Colorado to limit ballot access to persons who are eligible for that office. And moreover, our federalist system holds that it is the role of the Colorado courts “to say what the [Colorado] law is.” The Brennan Center for Justice (out of NYU Law) has a thoughtful amicus brief on this, explaining that for the US Supreme Court to override Colorado’s interpretation of that state’s election laws would be a variation on the absurdist “independent state legislature theory” that the Court soundly rejected just last summer.
Finally, do not miss the NAACP LDEF brief. It is a powerful call (grounded in strong legal analysis, as always) to preserve the Reconstruction Amendments, warning the Court not to repeat its past shameful errors of issuing decisions (notoriously but not limited to Plessy v. Fergusson) that undermined the meaning and practical enforceability of those provisions that were designed and remain necessary to preserve democracy.
Getting the most out of the arguments
Read up. Above are many more links than I usually share, but I strongly recommend at least reviewing the table of contents and introductory section of each, and reading the full arguments that interest you most. Even more than most cases these days, this case will be seen in a politicized context but understanding the fully developed legal arguments will allow you to engage with (and possibly critique) the arguments from a less-entrenched perspective.
Argument begins at 10:00 and all arguments are open to the public. Expect arguments to run until at least noon and possibly 1:00 (particularly if the Court grants a recent request for divided argument and additional time). Edit: the Court granted that motion in part. 80 minutes total time but 3 arguing counsel. When the allotted time expires, each Justice gets one more round of questioning for that lawyer (which often adds 15-30 minutes each round, times 3 lawyers).
Attend in person if you can. Lines to get into the Court have been quite reasonable so far this term, with people arriving around 6am and still getting in for somewhat high-profile cases — but surely a Trump case will be different. I’ve been guessing 3am for cases with a lot of public interest and I would try to get there as early as possible for this one. More details here.
Listen live online if in-person is impractical. The front page of supremecourt.gov has a link or see the audio page. You might also see if scotusblog is live-blogging.
Swing by if you can. If you’re in DC but a very early and full morning at the Court isn’t an option, it is worth coming by the Court to take in the atmosphere. When the session concludes, arguing counsel will come out and hold press conferences on the sidewalk in front of the plaza. There will likely be demonstrators all morning.
Or take it in when you can. Recordings, transcripts, and transcript-synchronized recordings will be available later.