Disqualification: Oral Argument Recap

All over but the shoutin'?

hello dumpster my old friend / i’ve come to talk with you again / lawyers talking without speaking / judges hearing without listening

My previous writing on these cases can be found in the Roundup Post.

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I’m trying to imagine a way oral arguments could have gone any worse for those of us trying to keep Donald Trump, an oathbreaking insurrectionist, off the ballot.

Suppose Jason Murray (advocate for my side), under Justice Jackson’s heavy questioning, suddenly lashed out and called her the n-word. This would probably have been better for our case than what actually happened, because it would have been a huge distraction and everyone would have set aside the oral arguments as a weird fever dream. The case could then be decided on the briefs alone. Or suppose Justice Thomas arrived and presented new evidence that he personally dug up at the National Archives: a letter from Lyman Trumbull to Lot Morill saying that, upon reflection, Griffin’s Case did indeed bar all Section Three enforcement by the states and that it was absolutely right to do so. At least then the focus would turn to a debate over that new document, which might possibly have been refuted as a forgery or something.

Anything would have been a welcome distraction from what actually happened.

Yesterday, I told you not to read too much into oral arguments. I told you to expect the Court to train all batteries on Mr. Murray (advocating against Trump), because they would be probing him for an escape hatch. I told you that the questioning did not necessarily indicate the way they were leaning, and I maintained that the case was a near-tossup.

However, I also laid down three markers I’d be keeping an eye on:

• What is Justice Gorsuch worrying about? (representing the legal argument)

• What is Justice Roberts worrying about? (representing the political argument)

• What is Justice Jackson worrying about? (representing the left’s position)

All three threw up every red flag in the book, and some that aren’t in the book.

I wrote yesterday that, “Justice Gorsuch… gets a certain air of smugness about him when he’s pretty darned sure he’s right, and I will be very worried if I see him taking that tone against Jason Murray.” Gorsuch wasn’t just smug; he was full-on smarmy, batting around Murray (his own former clerk!) like a cat who’s pretty sure he’s about to eat a tasty mouse. Gorsuch was clearly sympathetic to the “officers of the United States” argument from Blackman and Tillman (something I openly fretted about yesterday). He also misread the “self-execution” argument Anderson et. al. brought forward and seemed to really think he’d scored a point when he badgered Murray into admitting that military officers could not disobey a disqualified president without further action from a competent legal authority to effectuate removal.

Roberts was indeed doing his Roberts thing—finding the most politically convenient escape hatch and taking it, and damn the facts. In this case, that’s taking constitutional enforcement power away from the states (thus ensuring Trump is on the ballot) but blaming Congress (for failing to pass enforcement legislation) rather than the Court (which does not want its fingerprints on this). As I explained at some length in “Saying the Magic Words”, this garbles text, history, structure, purpose, and any other legal standard you might be interested in, while going way beyond anything that actually happened in Griffin’s Case or other early Section Three proceedings… but it sounds plausible on its face, which is all Roberts really ever wants. Unlike the Dobbs proceedings, however, where nobody was nibbling on Roberts’ bait, everybody was biting here.

The biggest surprise of all, though, was Justice Jackson, who showed her cards pretty clearly: she does not think Section Three covers the presidency, because Section Three doesn’t include the word “president.” On the one hand, I think this is a terrible argument. As Mr. Murray explained, the reason Section Three explicitly enumerates presidential electors and members of Congress is because they arguably aren’t civil officers of the United States. However, since the President unambiguously was understood to be an officer of the United States, the framers of Section Three saw no reason to expressly include him. (Jackson seems to be under the mistaken impression that Amendment XIV was only trying to address “local elections,” ignoring the real possibility that, but for Section Three, 1870s Democrats might have nominated an ex-Confederate as their presidential candidate.¹) On the other hand, you have to respect it: a left-wing justice is attempting to ascertain the original public meaning of the constitutional text and apply it fairly, in a way that she almost certainly would prefer not to apply it. Choosing the text and the law over her own policy preferences is commendable. It’s just blasted regrettable that she’s got the law wrong in this case, of all cases.

The morning proceeded more or less along those lines.

Early on, things were going okay. Mitchell (advocate for Trump) advanced the argument that Trump could not be disqualified in advance of Inauguration Day, because Congress could lift the disability by a two-thirds vote. This argument collapsed fairly quickly when Justice Alito asked whether someone could be treated as a felon even though a future executive could issue the felon a pardon. Alito instead wanted to entertain the idea that states simply can’t take notice of Section Three, and Mitchell (wisely) adapted. That turned out to be Roberts’ exact preferred escape hatch, and the argument never recovered.

I felt a brief glimmer of hope when Justice Barrett became the first and only person in the room (including Mr. Murray) to correctly articulate the limitations of Griffin’s Case. She reminded Mr. Mitchell that Griffin was specifically about a collateral attack through a habeas writ, not a sweeping statement about how Section Three operates in every imaginable context, and that some of Griffin’s (over)broad language should be read in that light. Mr. Mitchell rejected this reading of Griffin, but Barrett is right. (Again, I discussed the collateral-attack angle in “Saying the Magic Words” and won’t repeat all that here.) This right here is the core of the argument that refutes the entire “only Congress can effectuate Section Three” position that Roberts and the Court seemed to be converging on.

So why was ACB making it, instead of Mr. Murray? It’s obvious why nobody else signed on to this interpretation: because Mr. Murray didn’t press it. Why not?

Some commentators have been critiquing Mr. Mitchell’s performance today, because Mitchell kept leaning on weak arguments, openly admitting the limitations of those arguments, and actually pushing the Court away from certain off-ramps it might have wanted to take. I thought that was quite canny of him: Mitchell was playing a weak hand. Trump’s arguments in this case are weak and wrong. Mitchell boosted his credibility by admitting weaknesses and focusing on a handful of (relative) strengths.

What’s Mr. Murray’s excuse?

It is always tempting, when your side loses a case it should win, to blame your advocate. This isn’t always fair. Even the best advocate can’t change the minds of justices whose minds are already made up. But the fundamental job of an advocate at oral argument is to tell the justices a convincing story about how the law works and why. Oral arguments aren’t for deep dives, because there isn’t time, but they can make or break the story the justices tell themselves about your position. You can’t expect the justices to show up to court with the contents of your brain, your mental model of the law, already downloaded into their heads. You have to show them what that model looks like, stuff it into their brains, and provide the key historical evidence to support it. At the very least, when the justices ask questions you have to have a straight answer for them. Even admitting “yes, my position has scary, novel consequences” is better than mumbling. Especially in a case like this, where much of the outcome has been dictated by unimaginability bias, you have to help the justices imagine the world where you win.

Mr. Murray failed to do that almost every time he was called upon to do so. When asked whether this would result in 50-state chaos, he hemmed and hawed and tried to pretend state courts wouldn’t go rogue (they would) and that the Supreme Court would wade into state-court evidentiary records and sort them out if they did (even if the Supremes could do that, they wouldn’t). When one of the justices (Gorsuch?) pressed Mr. Murray on the implications of the Electors Clause power that states have over the ballot, Mr. Murray keeled over. Not only did he take the Court’s left-wing 5-4 decision in Term Limits v. Thornton (limiting states’ power to impose extra qualifications on Congressional candidates), but he even extended Thornton to cover presidential candidates as well, something the Supreme Court has never held, which eviscerates the logic of Thornton, and which the plaintiffs in Thornton filed an entire amicus brief in this very case to disprove! This sort of thing happened over and over again, where I’d go, “Ah, Murray will now refute this point by raising this responsive point from Baude & Paulsen’s article,” and then Murray just flailed instead.

Mr. Murray proved himself capable of aping the opening paragraphs of most of the briefs on his side, which is a kind of mastery of the material, but he floundered whenever the Court took him into deeper water and asked him to apply that material in other contexts. Yes, it was a tough crowd… but we all knew that going in, and I expected Murray to be better prepared for it.

As a result, the Court—which, as I predicted yesterday, was going to try to blow holes in Murray’s argument—did indeed blow holes in Murray’s argument. Plenty of ‘em. Murray simply didn’t defend his fortifications effectively. Shannon Stevens (arguing against Trump for the Colorado Secretary of State) did great in her time, but she only had ten minutes… and, since everyone in the room could see that the justices had already made up their minds, those ten minutes were desultory.

Sit me down in hour-long one-on-one meetings with each of the justices, and maybe I could clean up the damage Murray’s garbled non-answers did today, by providing clear, straight answers well-founded on history and text.² We are going to have to hope that somebody at One First Street has that opportunity, because, otherwise, this one’s over. Yesterday, I gave 45% odds of winning this case. Today, in light of the disastrous oral arguments, I think 10% is optimistic. The Court is likely to adopt something quite close to this laughable chart from my earlier post on Griffin’s Case:

Today’s Supreme Court really did seem to buy that Section Three is simply inoperative without positive legislation from Congress. (Alas, Mr. Murray failed to point out the tension between this position and Congress’s well-known practice of disqualifying candidates on its own Article I authority—but neither did the briefs, IIRC, so we can’t necessarily blame Murray for that.)

Again: this looming defeat is not because the law is on Trump’s side. It’s because the justices have not had this legitimately complex area of law convincingly and credibly explained to them. Alas, unless the justices start writing and realize all by themselves that their opinion doesn’t add up, this will probably lead to Trump appearing illegitimately on the ballot—and, potentially serving,³ illegitimately, as President of the United States.

And you thought the 2016 election sucked.

1. The unofficial slogan of the 1868 Democratic National Convention, used throughout its proceedings, was “this is a white man’s country, let white men rule.”

2. I say one-on-one meetings because, as badly as Murray did today, he still did a better job than I could facing nine hostile judges all at once on a clock. Murray’s like a professional football player: even a devastatingly bad performance from him is still much better than anything I could produce on my best day.

3. I do find myself wondering whether the quo warranto writ still available in the District of Columbia, passed by Congress in 1963, might be a means of removing President Trump post-election (see D.C. Code §16–3501). This is enforcement legislation passed by Congress, and it avoids the “office/officer” problems we’ve had in the Section Three proceedings. But, let’s be honest, Trump’s still no better than a coin toss to win re-election, so this is unlikely to come up.

That’s dreadful in its own way. For reasons I have written about before and will write about again, I can’t vote for either candidate, but my personal preference would be to ruled unjustly by Trump for another four years instead of being ruled unjustly by Biden for another four.

In 2016, I wrote:

“If Trump and Clinton are the nominees on Election Day, right and wrong will become meaningless, blood will run like a river through the streets until the eventual victor is seated on a throne of skulls, and all atrocities will be moral, because life will be utterly without meaning.

“So I think I’ll finally go see Gods of Egypt.”

…so how have we found ourselves in a position even worse? Did some mad Hollywood producer greenlight Gods of Egypt 2: Electric Urshu?