News Alert: The Biggest Supreme Court Case of this Election Year Gets Argued Tomorrow

The Court will hear argument on whether Donald Trump can be disqualified from the ballot under Section 3 of the Fourteenth Amendment. Here's what to watch for.

My friend, the brilliant former Antonin Scalia clerk Ed Whelan, gives an insightful rundown of what to look for at tomorrow’s argument at SCOTUS. I’ll quote his pre-game notes at Bench Memos verbatim, since I could hardly do better. I’ll start by noting that the argument begins at 10:00 EST. It’s slated to run for 80 minutes, but likely to run longer, perhaps much longer. You’ll be able to livestream the audio on the Court’s website. Here’s what Ed (and I) see coming as things to be listening for:

1. Is the president “an officer of the United States” for purposes of section 3? Does the president “hold [an] office … under the United States”?

2. Is section 3 self-executing? Or does it depend on Congress’s having legislated a mechanism for its enforcement?

3. Is section 3 only a restriction on holding office, not on being elected to that office? And if so, how does that matter for purposes of its enforcement?

4. What is the meaning of “insurrection” in section 3? And did Donald Trump “engage[]” in it?

5. What background principles ought to govern interpretation of section 3? Should it be construed as narrowly as is fairly possible?

For competing accounts of the legal arguments, I again recommend the Public Discourse essays by Matthew Franck (Trump is disqualified) and [Stanford Law Professor and former United States Circuit Judge] Michael McConnell (no, he’s not).

I’ll also be listening for some telltale signs: Will any of the liberal justices signal that they are skeptical that Trump is disqualified? Will any of the conservative justices signal the opposite? Is there any position that seems to be garnering the support of five justices?

Ed thinks the case will be decided by a cross-ideological majority of at least six justices. He declines to say which way he thinks it will go. I suffer from no such modesty. The Court will hold that Trump is not disqualified from the ballot and will vacate or reverse the contrary holding of the Colorado Supreme Court. There’s a 90% chance that holding will garner six votes and at least a 50% chance that it will garner all nine.

There are three reasons I’m so sure. First, on the merits, it’s just very hard to see how Trump “engaged in” the riot (or insurrection if you like) when he was across town at the time. “Engaged in” doesn’t mean “encouraged” or “organized” or “incited.” It means what it says, neither more nor less. In a case where the very core of democratic self-government is at stake — the right of the citizenry to vote for the candidate it wants — the Court isn’t about to play fast-and-loose with the explicit governing language, for however much it might be tempted to do so in other contexts.

Second, for like reasons, in order to rule against Trump, the Court is going to have to be conclusively persuaded that all five of the questions noted above must be resolved adversely to Trump’s position. The Court isn’t about to throw a leading (indeed, according to the polls, the leading) candidate for President of the United States off the ballot because the balance tips ever so slightly against him. Given the stakes in this case, the balance of the argument will have to be beyond any reasonably serious dispute. That’s not going to happen.

Third and relatedly, the Court will see its own credibility, which has been falling in recent years, as being on the line. I personally don’t believe that should weigh with the Justices — they are hired only to decide cases and controversies, not to attend to what they take to be their public image — but I suspect it does count with some (Chief Justice Roberts, call your chambers). For those, the prospect of leaving a Godzilla-sized judicial footprint on what had been terrain previously reserved for the rough-and-tumble yet glorious struggles of electoral politics may prove terminally unappetizing.

Ed is planning to live-tweet the oral argument on Twitter/X. His account is @EdWhelanEPPC. Especially if you are not familiar with the justices’ voices, you might find his live-tweet useful.