Trump v. Anderson Oral Argument Preview

One way or another, my series on disqualification is soon coming to a close...

For all of De Civitate’s coverage of the Trump Disqualification Suits, stretching all the way back to August—including some frankly excellent in-depth explainers for the key issues in the case—see the Roundup post.

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Oral argument in Trump v. Anderson will be held on Thursday morning, February 8. A live audio stream will be posted on SupremeCourt.gov’s homepage, although you have to scroll down to it:

UPDATE: The Constitution Center says you have to navigate to a special hidden subpage, located here, which would be very like the Supreme Court.

I will be listening live. I have no idea what is going to happen.

Most people seem quite convinced that this case isn’t going anywhere, that the Supreme Court will overturn Colorado’s, that President Trump will be allowed on the Colorado ballot, and that the only question is how the justices will reach that conclusion. There are no actual prediction markets on this (that I can find), but I think the average American thinks there’s only a 10-15% chance the Supreme Court will uphold Colorado’s decision.

Disqualification? In My State? It’s More Likely Than You Think!

I think that’s quite wrong. The legal arguments against Trump are pretty strong. The attempts to resist them are weak, and the Trump legal team keeps abandoning arguments as they fall short. They have invested a lot of eggs into the single basket of convincing the Supreme Court that the presidency is not an “officer of the United States,” sacrificing other arguments to advance that one. Strategically, I think that’s the right move, because it’s their strongest argument.

However, imagine you had a case at the Supreme Court, and it hinged on your convincing 5 of 9 judges, including at least one originalist, that the President is a “United States officer” but not an “officer of the United States” yet nevertheless that the Presidency is an “office of honor, Trust, or Profit.” This is a position no court has ever formally taken before, with significant implications for how the Constitution has been implemented in other areas. Your case thus hinges on the narrowest of technical parsings, facing a historical record that doesn’t clearly support you and arguably supports your opponents. Even assuming for the sake of argument that you’re exactly right, what odds would you give yourself of winning that case, when the question is so close? Certainly not 85-90%! Trump’s case is weak, and all the political pressure in the world can’t make it strong.

Many of people discounting the odds of a ruling against Trump for two reasons:

1. They explicitly or implicitly believe that the justices are bad judges, who will start with a conclusion (“Trump should appear on the ballot”) and then invent whatever made-up reasoning they need to justify that conclusion. In other words, they think the originalists on the Court are liars, and that originalism is fake.

2. They have fallen victim to what I’ve termed “unimaginability bias”: when an event is so outside our experience that we cannot clearly imagine its consequences, we tend to believe the event is less likely to happen. For example:

• Many people around the world were flatly in denial about Brexit right up until the moment it happened. Polls showed Brexit with roughly a 50% chance of winning, but betting markets still put its odds at not more than 20%, because, my goodness, what would the world even look like if Leave won? They couldn’t imagine it, so they assumed it wouldn’t happen.

• Likewise Trump’s election in 2016: the polls showed a fairly close race. Nate Silver and his colleagues were screaming from the top of their lungs that Trump was the underdog, but could still very easily win. But what would the world look like if he won? Nobody knew. So nobody really believed it could even happen.

• Likewise the 2022 midterm “red wave” that wasn’t: the evidence for a red wave was extremely weak, and obviously so, but Republicans couldn’t imagine not trouncing Biden in such a terrible environment, so they vastly overrated their chances. (But I’ve already written an article about that.)

• I wrote about something similar after the Dobbs v. Jackson orals. I was right! (That said, I am not nearly as bullish on disqualification as I was on the fall of Roe.)

Nobody really knows what happens if Trump is DQ’d. It’s hard to imagine. There are various possibilities. (I’m still planning to write about them.) But a lot of the consensus that this isn’t going to happen is just coming from a lack of imagination.

As for the other problem, I recognize that judges are human and subject to immense pressures, which may cause even the firmest principle to bend. However, I also sincerely believe the five originalists on the Supreme Court are doing their best to do law, fairly and justly. Some are better at resisting the political pressures than others (Thomas is better at this than Alito, for example), and it remains to be seen whether they will succeed, but they are all going to be trying their level best to apply the law here. That’s bad news for Trump, because the law is not on his side.

I go into oral arguments with this prior: there is a ~45% chance that the Supreme Court will uphold Colorado’s ruling and allow Trump to be disqualified under Section Three.

I don’t think a finding in favor of disqualification is actually likely. The political pressure is very strong. Also, the case has roughly seven key questions, and challengers have to run the table. Trump only has to win on one of the seven questions to take home the victory. That makes an uphill battle. Nevertheless, given the strength of the legal arguments, disqualification is much more likely than most people are giving it credit for.

In fact, we really could see anything happen in this case. Moreso than usual, the Court will feel intense pressure to unite on this decision. It is therefore not inconceivable that the Court will decide for Trump per curiam, with no signed opinion and no dissents (10% chance) It is also conceivable that they will decide against Trump per curiam (5% chance).

On the other hand, they might try to organize a show of unity and fail. Bush v. Gore, the last election case of this magnitude, was officially a per curiam decision, but they ended up with four separate dissents and a written concurrence.

We could also see any number of strange ideological scramblings. Progressives on the Court are historically more about letting The People vote because Democracy, while conservative justices have been more about following the letter of the law. In this case, the letter of the law generally hurts Trump and appeals to The People & Democracy generally help Trump. I would not be surprised by a decision where Kagan and Alito ended up siding against Jackson and Barrett (20% chance). Oral arguments might just shed some light on these coalitions, if any are developing.

Oral Argument is the Graveyard of Prophecy

Still, the odds are strong (70% chance) that oral arguments won’t give us high confidence in the final outcome. Many, many, many people have tried to read the “tea leaves” of oral argument before. They generally end up badly burned.

If this is your first oral argument, you may be tempted to infer a result from the questioning. We’ve all been there. Just remember the many supreme shocks of our era: Roberts saving the Affordable Care Act in NFIB v. Sebelius. The shocking, albeit correct, 5-4 decision denying a stay against Texas’s abortion law in 2022 (which I covered here). The Great Defection of 1991’s Planned Parenthood v. Casey, where Justices Kennedy and O’Connor shattered contemporary judicial conservatism by saving Roe. Even last term’s Haaland v. Brackeen, where a 7-2 majority preserved the Indian Child Welfare Act. You wouldn’t have guessed any of these outcomes from the oral arguments, and there’s plenty more. You just can’t judge an outcome by its oral argument.

What you can do, however, is test the strength of the arguments. Oral arguments are educational (and fun!) because the advocates have to set aside the comfort of briefs and blog posts, get up in front of a hostile panel, and survive the third degree, all while making their case on a very tight time limit. (Imagine having only 40 minutes to make the case for or against disqualification, while fielding hostile questions in real time!) As noted legal authority Captain Jean-Luc Picard once said, “The courtroom is a crucible. In it we burn away irrelevancies until we are left with a pure product, the truth for all time.” Assuming both advocates are at the top of their game—a big assumption, alas—we will get to see¹ that crucible burning in real time.

I’m a smart guy, but I could not do what Supreme Court advocates do. I’m a keyboard warrior, not an orator. Put me up at the lectern (not a podium) and I’d be gibbering like a fool in minutes. I plan to be impressed by both sides.

Jonathan Mitchell is arguing for Trump. You probably know Mitchell as the architect of Texas’s “bounty hunter” abortion law, but he’s an experienced advocate who once served as Texas’s top courtroom lawyer (the solicitor general). Mitchell is a genius—perhaps a mad genius, but a genius, and he gets things right that everyone else gets wrong. (Unfortunately, he also gets things wrong that everyone else gets right.) Read his New Yorker profile. As a Mitchell fan, I am grieved that he is on the wrong side of this case, but I expect him to put up a hell of a fight.

I’ve never heard of the advocate for Anderson, one Jason Murray, but he was one of the advocates who won the case in Colorado, and PBS notes in passing that Murray has a very weird distinction: he clerked for both Elena Kagan and Neil Gorsuch.² Team CREW wouldn’t be putting him in the line of fire if they weren’t very confident in his capabilities.

Yes, both men have remarkably punchable faces, but, as we recently learned here on De Civ, so do I,³ so please don’t hold it against them. (Another good argument for audio rather than video streaming.)

I won’t tell you which is which, to protect you from cognitive bias. First, decide which of these men is more punchable. Then, check this link to see which is supporting your side.

My Prophecies Anyway

The one thing I am quite sure of is that the justices will be wheeling out the heavy artillery. This is a hugely high-profile case, maybe more high-profile than Dobbs v. Jackson, and I expect the Court to be at full battle stations, all batteries primed.

My guess is that they are going to concentrate their withering fire on Anderson et. al. (the challengers to Trump), because Anderson et. al. have a legally stronger, but profoundly upsetting, position. Like a surrounded army, the Supreme Court (which, as I’ve shouted before, does not want to have this case) is going to be very interested in blowing holes in the challengers’ siege. One big hole is all they need to escape. If I am correct, the Justices’ inquisition will likely be headlined as "Justices seem skeptical of disqualification," and there will be a widespread perception that the challengers have lost… but it probably shouldn’t be interpreted that way. The justices can only escape out a hole if they actually find one. They may rain fire down on Anderson et. al. only to find it made no difference. Then they’ll (probably) rule against Trump.

On the other hand, if the instinctively anti-disqualification justices have already started working on the opinion and realized that the opinion won't write (because it’s wrong), they may just as easily come out in full enfilade against Trump's lawyers. This is because they'll be looking for Trump's lawyers to bail them out, by hammering Team Trump into taking a position the Supremes can actually defend.

Here are some things I will be particularly watching out for:

• What is Justice Gorsuch worrying about?

Justice Gorsuch is my weathervane for how the legal argument against Trump is going. Gorsuch is fully devoted to originalism and refreshingly devil-may-care about political fallout. Besides the progressive three (who are 75-85% likely to vote to disqualify), I think Gorsuch is the justice most likely to vote against Trump (60%), for the simple reason that Trump is wrong and deserves to lose this case on the legal merits.

However, I worry, a lot, that Justice Gorsuch may have been convinced by the “officers of the United States” argument, or by the “Section Three needs Congressional legislation” argument. The second argument seems clearly wrong, but only if you read the case law very, very carefully, with full understanding of the legal context. Will Gorsuch (or the other originalists) have given the case enough time and attention to realize it? The first argument is worse: a few months ago, I genuinely thought it was a close question. If even Gorsuch has been swayed by those arguments, the Trump challengers are going to have a very tough uphill slog to get five justices on their side.

Justice Gorsuch sometimes asks questions because he’s really trying to work things out, but he 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.

• What is Chief Justice Roberts worrying about?

Chief Justice Crapburger is my weathervane for how the political argument against Trump is going. Roberts will likely be looking for some kind of escape hatch from this case, since it will damage SCOTUS’s vaunted “legitimacy” no matter the outcome (because much of the country will disagree with it, either way). My hope is that we will find him here at orals as desperate and forlorn as he was at the Dobbs oral arguments. That was where Roberts previewed his idiotic "compromise" Dobbs concurrence, which every single other justice agreed was legally incoherent and morally bankrupt—like John Roberts himself.

Alternatively, he may have resigned himself to deciding something, and will side with whatever side seems least politically damaging to the Court in the long run. It’s not immediately obvious which side that is, especially since ruling against Trump here could (in the eyes of many progressives) “make up” for the Supremes’ “erroneous” ruling in Dobbs. His questions may provide some indication which way the winds are blowing. It might help that Roberts hates Trump (a lot), but I suspect Roberts will set that aside to focus on protecting his precious idea of legitimacy.

Unfortunately, thanks to the immense political pressure on the Court right now, this case will not be decided on legal grounds alone. Political grounds are going to matter. They shouldn’t, but they will. At the very least, they will secure Roberts’ vote. They may play a role for other justices as well, to different extents. Hopefully, the political winds blow the same way the legal signs are pointing, but we shall see.

• What is Justice Jackson worrying about?

I think Justice Jackson is becoming the leader of the left end of the Court. She’s smarter than Sotomayor. She’s not as smart as Kagan, but she also doesn’t worry about the politics as much as Kagan, which makes her more of a cohesive figure.

Naturally, most of us assume that the left justices are going to vote against Trump. Their judicial philosophy has enough, ah, flexibility built into it to allow them to reach politically desirable conclusions on most questions, and it’s well-known that the Left doesn’t like Trump. Moreover, they are much less likely to worry about technical questions like “what an officer is” if the intention seems clear enough. This is becoming less true as time goes by: Kagan does decent textual analysis, at least when it suits her, and Jackson speaks progressive-originalism on the regular. Yet their votes remain tediously easy to predict on any cases with political valence—unlike the votes of Kavanaugh, Gorsuch, Roberts, Barrett, and (occasionally) Thomas. It’s fair to guess that they’re locked-in anti-Trump votes.

But.

The left judges may be very concerned about denying voters “their choice.” They may also be concerned that removing Trump from the ballot might pose a risk to Biden, since Trump is likely the only candidate Biden could actually beat, given his current polling.

I’ll be listening closely to Justice Jackson (who, helpfully for these purposes, talks a lot) to try and get a sense for where the left judges are leaning.

• Obviously, there’s still a lot to glean from what the other justices are saying…

…both in the “helping us predict the outcome” sense and in the “helping us better understand the law” sense. I don’t expect to change my mind about this particular case based on oral arguments, but it happens! I’ll go in with an open mind. I want the law followed, even if it means Trump gets to run after all. I just don’t think the law says that.

Lastly, I’ll be wondering:

• Will any of my personal arguments get airtime?

I’ve advanced a few (slightly) novel arguments here at De Civitate. Nobody was really talking about 19th-century law dictionaries’ usage of “officers of the United States” before me. I still appear to be the only person online who’s written a full article about the rogue “the” in the Misquoted Fourteenth Amendment. My interpretation of Griffin’s Case was unusual when I posted it. (I see some evidence in the amicus briefs that other thinkers are converging on a similar interpretation.) It would be kinda fun if one of “my” arguments came up at orals. Improbable, but I’ll be listening for it!

Worthy Reads? In My Oral Arguments Preview? It’s More Likely Than You Think?

Meanwhile, here are some things I’ve been reading the past few days and am finding profitable:

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Will Baude & Michael Stokes Paulsen, who kinda kicked off the frenzy over disqualification with an academic paper on Section Three in August, declined to file an amicus brief in the case, feeling that, as academics, it wasn’t really their place to wade in directly. Instead, they’ve launched a series of blog posts at the Volokh Conspiracy replying to many arguments against disqualification. If you’ve read all my posts so far, you will find a lot of overlap with their arguments, but they cover some new ground and they do it all with admirable brevity. I particularly am enjoying their pieces today on the appropriate use of legislative history, a topic I didn’t delve into much here.

Also, there is no doubt whatsoever that these blog posts will be avidly read by various Supreme Court clerks, and that their arguments will be brought to the attention of the justices where relevant. So these articles have some heft that other blog posts historically do not:

1. Fighting the Meaning of Section Three

2. The Objection that Enforcing Section Three is “Undemocratic”

3. The Objection that Enforcing Section Three Would Be Too “Dangerous”

4. The Objection: “But He Hasn’t Been Convicted of Anything”

5. The Use and Misuse of Section Three’s “Legislative History”: Part I

6. The Use and Misuse of Section Three’s “Legislative History”: Part II

7. Section Three is Not a Political Question

8. The Objection That It Is Too Soon to Adjudicate Trump’s Qualifications

9. More posted daily at the moment!

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In sharp contrast to Baude & Paulsen, sterling originalists I’ve long adored, Marty Lederman is, um, not on my team. As an Obama White House lawyer, the positions he publicly defends are deeply inimical to mine. Nevertheless, I’ve found his recent writing on this case fresh and often lucid, and so, for possibly the first time in my life, I’m about to post a link to the Balkinization blog without prefacing it with “look out, this is dumb”:

1. A User’s Guide to Trump v. Anderson: Why the Court Might Resolve the Case

2. A User’s Guide to Trump v. Anderson: Possible Outcomes

3. A User’s Guide to Trump v. Anderson: Two Important Things All Parties Get Wrong, and One Important Thing They Don’t Address

4. A User’s Guide to Trump v. Anderson: “Officer of the United States”

5. A User’s Guide to Trump v. Anderson: The Insurrection

6. A User’s Guide to Trump v. Anderson: Griffin’s case

If you only read one of them, read #3, which was the installment that really made the rounds among lawyers I follow. If you only read two of them, read #3 and #5.

Bonuses from Balkinization, both responses to this guide. Remember that Balkinization is way left. Balkinization is where Mark Tushnet published the gloating “Abandoning Defensive Crouch Liberalism” article in 2016 that arguably scared a certain small fraction of conservatives so much that they got out to the polls and delivered Trump his only White House win. Still, interesting reading even where I don’t agree:

1. Marty Lederman’s Fundamental Mistake of Law, by Bruce Ackerman

2. The Politics of Disqualification, by Mark Graber (a scholar who has appeared in my DQ posts before)

3. John Marshall Harlan on Self-Execution, by Gerard Magliocca (another DQ scholar, adding to the historical evidence against.)

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Sundry other things I’ve read or am reading:

• Amy Howe’s argument preview at SCOTUSBlog is, as always, concise, accessible, and neutral. I love her reporting.

• I think I’ve pestered Derek Muller with enough minor things at this point that he’s stopped reading my emails, but he’s still one of the best people to read about this case. He’s been skeptical from the start, but not for the usual reasons people give. His Friday post at ElectionLawBlog was thought-provoking.

• Politico has a piece up today measuring the fallout of a decision against Trump, called “Supreme Court Shocker?” and featuring a number of advocates I respect (plus several I don’t).

You may notice that my list leans pretty heavily toward the pro-disqualification side. That’s not intentional, and I’ve tried to correct it by reading more from both sides. However, smart pro-Trump legal minds seem to have largely gone silent on this in the past few weeks. There just hasn’t been very much intelligent legal writing about this case from the pro-Trump side this week. Should I read anything into this? I’m not sure.

Half the conservative legal minds I’d expect to write about this case are now working on the case… including some, like Judge J. Michael Luttig, who have taken the anti-Trump side! Kurt Lash took to the Volokh Conspiracy to respond to an argument about John Floyd (an official in the Buchanan Administration) that Akhil and Vikram Amar raised in an amicus brief, which was interesting but a bit of a sideshow. National Review hasn’t written a single article with “insurrection” in body text in the past week, according to their website’s search engine, except for a single short straight news piece about a particular filing in the case. The American Conservative posted only this desultory piece reciting the usual arguments against disqualification in their most abbreviated forms. Josh Blackman and Seth Barrett Tillman, deeply involved in the SCOTUS case, have been pretty restrained online.

In short, the conservative legal academy’s been real low-energy this week! Perhaps that will change after orals are done.

(No, wait! While I was writing this post, Blackman & Tillman posted an omnibus of all their writing about the case, which will take you eight months to read. It’s not new writing, but at least it’s pro-Trump writing, which balances all the anti-Trump material I just shared.)

In the meantime, I’ll see you at SupremeCourt.gov on Thursday morning at 10 AM / 9 Central! I plan to post a “quick” reaction post late Thursday, akin to my reaction posts after Dobbs v. Jackson and Growe v. Simon orals. (They are never short.)

Oh, speaking of Growe v. Simon, the Minnesota Supreme Court finally released its full written opinion today, explaining their confusing final order from a couple months ago (and teeing up the controversy for the general election fight that is soon to come). I haven’t finished reading it yet, and, thanks to orals tomorrow, probably won’t fully digest it until Monday, but I’ll certainly say a few words about it when I get the chance, since that’s “my” case.

1. Well, hear it, anyway. The Supreme Court very wisely forbids live video streaming. Many people point out that Congress already broadcasts live video, and argue that, as a co-equal branch, Supreme Court should follow the same standard of transparency as Congress. They are, of course, correct: Congress should immediately terminate all live video broadcasts of Congressional proceedings, and take additional steps to reduce transparency so as to protect the public interest.

2. I presume he clerked for Gorsuch when Gorsuch was still on the Tenth Circuit, but it’s still very odd to argue before a Supreme Court where you’ve clerked for two ideologically opposed justices.

3. I was pretty tempted to link this picture of me instead, since it’s the sickest burn I’ve ever received.