Fwd: Five Things to listen for in today's 14.3 argument

[Charlie Cooper]

Here is today's commentary on the disqualification case that will be argued in the Supreme Court today by a constitutional law scholar recommended to me by Rep. Raskin's chief counsel, Rachel Marshall.

Charlie Cooper

M: 410-624-6095

In advance of this morning's oral argument on whether former President Trump is disqualified from future federal office, some thoughts on what I'll be listening for  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

	View in browser Bonus 65: Five Things I'm Listening For in Today's Section 3 Argument In advance of this morning's oral argument on whether former President Trump is disqualified from future federal office, some thoughts on what I'll be listening for Steve Vladeck Feb 8 ∙ Paid   READ IN APP   Welcome back to the weekly bonus content for “One First,” and a special welcome to new subscribers!! Although Monday’s regular newsletter will remain free for as long as I’m able to do this (like this Monday’s discussion of Lincoln, Taney, and the suspension of habeas corpus), much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit: Subscribed The topic for this week’s bonus content is an obvious one. Even with Tuesday’s unanimous ruling by the D.C. Circuit that former President Trump is not immune from criminal prosecution for his role in the events leading up to (and on) January 6, 2021, about which I’ll have much more to say on Monday, today’s oral argument in the ballot disqualification case clearly takes precedence. I don’t think it’s an overstatement to suggest that this is one of the biggest cases that the Court has heard in decades—and possibly the most politically significant argument since Bush v. Gore in December 2000. As I wrote back in December, I think that this case poses myriad legal and political challenges for the justices (some of their own making), even if you think (as I do) that Trump did “engage in” insurrection. Rather than rehash that analysis, I thought I’d use today’s issue as something of a “what to listen for” guide for those who are planning to live-stream the argument, which should begin sometime around 10:10 ET (the Court is set to hand down one or more opinions in argued cases, which will not be live-streamed because … reasons, before it turns to the main event). For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on. Before turning to specifics, an obligatory caveat: Oral arguments are not necessarily an accurate predictor of how the Supreme Court is going to rule. In my experience, the more visible/high-profile a case is, the less one can be confident, based upon how the argument goes, in how the justices are leaning. That’s only the more so when you have a case, like this one, in which the justices are confronting so many questions of first impression—and where there’s a lot more going on than just fighting over the applicability of particular precedents. Is it possible that it will be abundantly clear, based on how the argument goes, what the Court is likely to do? Sure. But it is by no means a given. So please take what follows (and what reporters and other commentators say during and after the argument) with at least a couple of grains of salt. “Off Ramps”: The biggest question I have heading into the oral argument is how much the justices will probe/be interested in the numerous different “off ramps”—a term folks have been using to describe the various ways in which the Court could reverse the Colorado Supreme Court without having to decide whether or not former President Trump “engaged in” insurrection. There are a bunch of possibilities. For instance, there is the argument that Section 3 of the Fourteenth Amendment doesn’t apply to the President, whether because he’s not one of the covered “officers” or because it doesn’t apply to individuals elected at the national level. There is the argument that Section 3 requires implementing legislation from Congress in order to be enforceable. There is the argument that, implementing legislation or no, it has to be enforced by the federal government, not individual states. There is the argument that, even if states can enforce Section 3 against a presidential candidate, they have to do so in a particular manner that Colorado didn’t follow here. And so on. Each of these arguments have their own logical, historical, and analytical shortcomings, but what I’ll be listening for is how much they nevertheless come up—and from whom. Some of them will surely be the subject of at least some questions. But do they dominate the argument? Are the justices asking about them from across the bench, or is it one specific cohort? Are there particular off ramps that seem to be more popular among the justices than others? More than anything else, this, to me, is likely to be the most relevant “tell” in what happens in Court later today. An argument dominated by non-merits questions could well presage a non-merits ruling. Where is Chief Justice Roberts?: Historically, the Chief Justice looms large in cases with this much public interest and such high institutional stakes. And Chief Justice Roberts has not been shy, in recent high-profile oral arguments, about trying to stake out positions that might be described as “institutionalist”—such as his effort during the Dobbs argument to float a decision that would have upheld Mississippi’s 15-week abortion ban without going any further, including without formally overruling Roe (the exact position he argued for in his Dobbs concurrence). How much do we see that side of the Chief Justice during the argument? And how much do his colleagues pick up on his questions? It was pretty clear, coming out of the Dobbs argument, that no one was interested in the compromise Roberts was shopping. Will he take a comparable approach today—and, if so, will he find more support from either side/both sides of the bench? When and How Does Justice Kagan Assert Herself?: If there is going to be a majority that draws justices from across the ideological spectrum, it’s hard to see how Justice Kagan wouldn’t be in the middle of such a group. What does she focus on in her questions later today? Is she as skeptical toward the respondents’ (and Colorado’s) lawyers as she is likely to be toward Jonathan Mitchell (who is arguing on behalf of Trump). Does she go out of her way to either come back to or disagree with questions asked by her conservative colleagues? One of the best pieces of advice I ever received about arguing in the Court is to understand that the justices are often using the advocates as vehicles through which they talk to each other (here’s an old bonus issue on lessons a range of advocates took away from their first arguments). How much Kagan does this today, and to whom, could tell us a lot not just about where she is likely to end up, but whether she’ll have friends. Indeed, it’s hard to envision any consensus ruling from the Court that doesn’t have the Chief Justice, Justice Kagan, and Justice Kavanaugh as part of it. Pro-Affirmance Questions from Justices Thomas, Alito, or Gorsuch: A lot of the commentary leading into the argument has presupposed that the justices most likely to be sympathetic to Trump’s position are Thomas, Alito, and Gorsuch. (The less sophisticated commentary assumes it’ll be the three Trump appointees, on the assumption, which they’ve already disproved, that they’re instinctively sympathetic to the President who appointed them.) Just as I’ll be really interested to see where and how Justice Kagan pushes the respondents’ lawyers, I’m also going to be listening for skeptical questions for Trump’s counsel from the Court’s three most ideologically conservative justices. Justice Gorsuch, in particular, not only has said some relevant things in his own jurisprudence, but as a long-time Coloradan (his chambers while he served on the Tenth Circuit were in Denver), he may have idiosyncratic (and significant) views about the state’s central role in this case. How Much Do We Hear About Trump?: Finally, there’s the question of whether the justices avoid talking about Trump himself, or whether they get into the nitty gritty of the specific factual findings that formed the basis for the Colorado courts’ determination that the former President engaged in insurrection. In the handful of Trump cases that the Court has heard to date, the focus has usually been on the presidency, as opposed to the particular President. If that pattern holds today, it’s likely to augur well for Trump. But the more Trump himself is part of the story at the argument, the more that suggests that the Court is thinking hard about the merits—and about whether Trump’s conduct really should disqualify him from holding future federal office. In a world in which the least likely ruling, in my view, is one that rules for Trump on the merits (i.e., that he did not engage in insurrection), this focus could, ironically, be a bad sign for him. Of course, a lot can happen during an 80-minute oral argument (that, if I had to bet, will go at least 2.5 hours).¹ In my capacity as CNN Supreme Court analyst, I’ll be helping with live coverage both on the network and online. So I’ll try to offer additional thoughts there. But hopefully the above helps to set the stage for what could very well be an illuminating oral argument—even if it’s not as revealing as we might want it to be (and especially if it is). We’ll be back Monday with our regular coverage of the Court. Until then, thanks for reading; I hope you have a great weekend! 1 Since COVID (and the shifts in the Court’s argument protocol that it precipitated), the Court has regularly gone well over the allotted argument time, especially in higher-profile cases. This is a noted contrast from as recently as the tenure of Chief Justice Rehnquist, who was notorious for cutting counsel off as soon as the red light signaling the end of their argument time came on. Perhaps the thing that I’m most confident about heading into the argument today is that this trend will continue.   Like Comment Restack   © 2024 Steve Vladeck 727 East Dean Keeton Street, Austin, TX 78705 Unsubscribe