Donald Trump had a very good day on Thursday, surely the best he's had this campaign cycle. And the very best of the news for him is that the Supreme Court heard his Fourteenth Amendment case, and signaled in just about every way possible that he's going to win, probably 8-1 or 9-0.
Lawyer-reader A.R. in Los Angeles listened to the oral arguments, and agreed to send in a brief report:
Not surprisingly, the Court did not get into the facts of the case (i.e., whether Trump is an insurrectionist) but focused solely on the question of whether the states can enforce Section 3 of the Fourteenth Amendment, especially in the absence of Congressional legislation. It was clear from the questions that the result the Court wants to reach is "No, the states do not have that authority."
That said, how they get to that result is less clear. Justices Ketanji Brown Jackson and Neil Gorsuch were skeptical that Section 3 even applied to the presidency. But the other Justices were more nuanced in their approach and were mostly concerned about the processes that the states are using to evaluate this question and how courts are supposed to review those decisions: Do they use a deferential standard of review or, as Justice Amy Coney Barrett put it, "Do we watch the video ourselves with no guidance from below?" In other words, are the lower courts' decisions largely final, barring reversible error, or does every level of the court system make its own determination?
The squishiness of this made them all uncomfortable, which was an interesting dynamic to observe. This is a Court that has no qualms about overturning decades of legal precedent, finding that Congress has gone too far in its legislation or the executive branch has overstepped its authority, but in the absence of anything to really "judge" and a constitutional provision that has never been interpreted, they were very nervous. The Court even shied away from a request to define Section 3's terms, such as "insurrection" and "engaged in." They seemed more willing to tackle the term "officer" and whether the president is one. But short of that, they seem to want Congress to take the first stab at interpreting this section and deciding what its enforcement looks like. Only Justice Sonia Sotomayor seemed ready to jump into the abyss and tackle the tough questions about what a state process under Section 3 should look like. She pointed out that if Congress fails to act, then this issue is not going away. It will only show up on their doorstep in some other posture. For example: What if Congress uses the Electoral Count Act to deny Trump certification under Section 3? Then what?
To me, the best answer of the morning came from Solicitor General Shannon Stevenson. When Justice Samuel Alito asked her about the "cascading effect" of different states perhaps reaching different answers about whether a candidate has engaged in insurrection, she responded, "... that's a feature of our process, not a bug." (Hey, does she read Electoral-Vote.com???) The states already determine who is qualified to appear on a state ballot under their laws and the Constitution, and if the Court is concerned about different standards, this is their opportunity to provide guidance about that. The states have their own processes by design under federalism, and if Congress believes that "federalism has run amok" they can act at any time. Such a perfect answer (and talk about poise under pressure)! In the end, it's unlikely the Supremes are going to own this hot potato and we'll likely end up with a decision reversing the Colorado Supreme Court.
The consensus, after yesterday's hearing, was overwhelming. Everyone we looked at agreed with A.R.'s conclusion that SCOTUS is going to support Trump. Some of the headlines:
The dominant notion here appears to be "skeptical." Even the Brits picked up on it, despite not knowing how to spell "skeptical."
For our part, we still have to do Part III of the short series we were doing on the Fourteenth Amendment. Illness got in the way, but we don't have much time left before it's no longer useful, so we'll have it on Tuesday. (Z)