02/09/2024
It was a lot of fun to visit Washington, even if only for a few hours. I hit the road last night at 9:30 P.M., so I could arrive early and grab a spot near the front of the line outside the U.S. Supreme Court Building. Members of the Supreme Court Bar receive preferential seating in the courtroom, but there are still hundreds of us competing for a few dozen seats. When I arrived at 1:30 A.M., I was the third person in line, so I felt confident I would get a seat.
I ran into a hiccup, though, after we were processed and admitted into the chamber. Security ushered in the bar members pell-mell, so seats were first come, first serve. I grabbed the last seat of the front row at the far left. A few minutes later, a court employee told me the seat was apparently reserved (despite no notice advertising such), so I would have to move. The employee was very nice, however, and placed me directly behind the respondent's attorneys in an aisle seat. CNN displayed a courtroom sketch artist's portrait of the argument; I am the flesh-colored smudge sitting behind the seated attorney.
Oral argument started at 10:00 A.M. and was focused on three issues:
1) Is Section Three of the Fourteenth Amendment self-executing? Self-execution is a legal term of art that means a legal provision, by nature of its language and adoption, needs no additional statutory scaffolding to support its implementation. For example, the First Amendment's guarantee of free speech doesn't need an administrative scheme passed by Congress for you to speak your mind: you simply can with impunity. With Section Three, it bans anyone from holding office if they participated in an insurrection. If it isn't self-executing, advocates for Trump's exclusion run into a major issue because the only insurrection clause currently in federal criminal law is 18 U.S.C. 2383, which Trump has not been charged with violating. The justices didn't seem especially interested in this argument, and it was the one they devoted the least time to probing.
2) Is the president of the United States a civil officer? The answer matters because anyone who served as a judge, legislator, elector, or other civil officer and took an oath to support the U.S. Constitution and then engaged in insurrection is banned from ever again assuming an office under the United States. The president and vice president take an oath that is phrased slightly differently, and the question is, even if a president did commit insurrection, does Section Three even apply to him given his unique responsibilities. Justice Jackson hammered pretty heavily on this question and asked why Congress didn't just throw in the chief executive among the laundry list of other offices. Counsel (and some justices) suggested it would be absurd to imagine Jefferson Davis, after serving as leader of the Confederacy, could then become POTUS. There has been some impressive legal scholarship that could justify either position, which is why I think SCOTUS will sidestep that question when issuing its opinion.
3) Can states determine the eligibility of candidates for federal offices? This final argument will probably decide the case. It seemed all nine justices were in agreement the federal branches, such as Congress or the judiciary, could bar a candidate from federal office, and the majority also embraced the idea that states could prevent ineligible candidates from running for state offices. The tricky part is the third scenario I discussed above in which Colorado potentially impacts the entire United States of America by disallowing a presidential candidate to be listed on its ballot. The spectator of retaliation by an opposing party in another state looms large. It is further complicated because states have in other instances not involving insurrection - such as a non-natural born citizen filing to run for president - refused the candidate's application because he or she was ineligible.
I expect the third query is the ground on which SCOTUS will overturn the Supreme Court of Colorado's decision in Trump v. Anderson. I would not be surprised if it is a unanimous decision (or possibly 8-1 with Sotomayor dissenting), but the opinion will have multiple concurrences because none of the justices seem on the same page of how to thread the narrow needle of maintaining court legitimacy, preserving democracy, ensuring voter choice, and acknowledging the historical precedents that emerged in the aftermath of the Civil War.
Also, as a matter of pure vanity, I was quoted in a news interview about my experience inside the courtroom, so please read it, along with this far-too-long post.
https://scrippsnews.com/stories/what-it-was-like-to-witness-the-historic-us-supreme-court-hearing/?fbclid=IwAR3YMu9OEWJLCTbh7Vq-f9bMC5a_10n336i5ebOJygvNJ3YK5X9H7iXflzw
