Stick a fork in it: The 14th Amendment is done

I was dubious about the whole 14^th Amendment is going to save us thing to begin with and listening to today’s Supreme Court argument – which I highly recommend any time the court makes live audio coverage available – only served to back up my skepticism.

The case was well argued by lawyer Jason Murray, who should probably be on some future president’s list for Solicitor General, his argument to the court on behalf of Colorado voters was so good.  He went straight after Trump’s main contention that he is constitutionally not an “officer” of the government under the provisions of the 14^th Amendment, and that it is Congress, and not the courts, that have the power to disqualify someone from serving in office.  Both arguments are bogus, Murray told Justice Gorsuch, who pushed him hardest on the whole “officer” issue.  Murray’s response to Gorsuch’s prodding was complex, parsing the history behind the 14^th Amendment and the language specifying “officer” as the constitution uses the word, specifically naming members of the House and Senate as holders of “seats” in Congress, rather than as officers of the government.  The squabble over the application of the word “officer” seemed to me to be a proverbial tempest in a teapot that indicates conservative justices are looking for a way to rule not for Trump, but against Colorado, by taking what lawyers are calling a “convenient off ramp” to get away from a ruling on broader, and presumably more Trumpian grounds.

Murray did not suggest one argument that I think may have helped him:  The framers of the 14^th Amendment omitted specifying who are the “officers” that the insurrectionist ban applies to because they assumed that anyone serving the people in government is an “officer” of that government, president included.  This old-timey assumption, however, opened a door to someone like Trump who contends he is not an “officer,” but an exalted someone above the rest of the rabble the framers had in mind.  Trump’s argument that he has absolute immunity to prosecution mirrors his demand that he be treated differently than the mere “officers” mentioned in the 14^th Amendment.  He seeks kinghood in multiple ways:  You can’t charge me with the crime of insurrection, nor can you get me on the 14^th Amendment, because I’m not an “officer,” I’m above the law.

Murray got into an intense back-and-forth with Chief Justice Roberts over what constitutes an “insurrection,” and although I thought Murray won that battle when describing Jan. 6 as an insurrection, Roberts got the best of him when it came to the question of who gets to say what’s an insurrection and what is not.  Roberts said if that definition is left up to the states, won’t that open the door to other states defining insurrection loosely and banning Biden or others from the ballot?  Murray ended up, I think once too many times, saying that the Supreme Court sits as the final arbiter of such disputes: “This court can write an opinion that emphasizes how extraordinary ‘insurrection against the Constitution’ is and how rare that is because it requires an assault not just on the application of law, but on constitutionally mandated functions themselves like we saw on Jan. 6.”  

But leaving everything up to the Supreme Court is not a popular argument with justices, who often like to get easy answers to their questions on issues that might create a possibility that a flood of cases might need to be brought all the way to the Supreme Court if states start defining insurrection in a way that is spurious.  Chief Justice Roberts did not have to come right out and remind Murray that the Supreme Court is not a finder of facts, but a ruler on the law, but other justices made remarks indicating they were uncomfortable with dealing with the issue of state courts ruling on facts that are not in evidence before the Supreme Court.  The court likes to dispose of cases and be done with them and not run the Pandora’s box risk that solving one problem will only lead to others, and thus to more work for the Supreme Court.

I think where Murray really lost his case was in his argument that the 14^th Amendment is “self-actuating,” that once someone commits insurrection, no further action is needed to disqualify him or her under the language of the amendment. Justice Gorsuch asked Murray, if the self-actuating part of the 14^th Amendment is true, why would a military officer or any other member of the government need to follow orders of President Trump or any other president after an act if insurrection is committed?  Murray seemed on a back foot from the moment the question was asked, trying to raise a hypothetical slightly off point, and Gorsuch jumped on him, telling Murray, “Don’t change the hypothetical,” and asking for an answer to his question. 

Murray did not have a good answer to the question – at one point, Gorsuch even said if he didn’t want to answer, they could “move on,” which was quite a slap at an attorney arguing before the court.  Murray finally had to concede that if a sitting president commits insurrection, “impeachment is the only way to validate” removal, and that until impeachment and conviction happened, lower officials in the government, including the military, would still have to follow presidential orders.

It should be noted that Murray wasn’t the only lawyer pushing the “self-actuating” argument about the 14^th Amendment.  Lawrence Tribe and former appeals court judge J. Michael Luttig were also proponents of the argument.  But getting cornered by your own argument is not a good look for any lawyer arguing before the Supreme Court, and it was pretty much downhill for Murray from that point on.

But it wasn’t just the conservative justices who seemed bothered by the idea of a state being able to disqualify a candidate from the ballot based on the 14^th Amendment.  Justice Kagan seemed particularly skeptical about one state being able to keep someone off a federal ballot.  Justice Roberts had also raised the issue of the history of the 14^th Amendment, that it was passed in order to constrain the rights of states and enhance the power of the federal government by putting a reason for disqualification in the Constitution. 

Once again, Murray fell back on his argument that it didn’t matter what an individual state did with respect to disqualification because “ultimately it’s this court that is going to decide” what the law is and “settle the issue for the nation.”  That argument didn’t go any further with Kagan and Jackson than it did with the Chief Justice.

Justices Kagan and Jackson both pointed to the history of the passage of the 14^th Amendment as a tool to prevent former Confederates from running for local offices or for Congress, rather than being aimed at candidates for the presidency.  Justice Jackson noted that the word “president” doesn’t appear in the amendment because it was intended to prevent the “South from rising again,” clearly indicating that it was aimed at stopping former Confederates from taking office in Southern states.  Murray agreed with her that the purpose of the amendment was to prevent “charismatic” former “rebels” from running for office, but that included the presidency, which according to his argument accounts for the use of the word “officer” of the government in the amendment.

But it looked to me like both liberal justices were sufficiently uncomfortable with the idea that a single state can effectively dictate who can run for the presidency as a bridge too far for them.  One of the conservative justices brought up the issue that applying the 14^th Amendment to Trump at this juncture would disenfranchise voters, but Murray was ready for that one, reminding the justice that what Trump had his minions do on January 6 by trying to stop the certification of ballots would have disenfranchised the 80 million who voted for Joe Biden.

It seemed also a mistake for Colorado to take the position that in his words on the Ellipse on Jan. 6, 2021, Trump had committed insurrection, when there has been no finding in a criminal trial, or by impeachment, that an insurrection took place.  The court, and especially Chief Justice Roberts, seemed to think that if they were to rule in favor of Colorado, they would be rubber-stamping Colorado’s assertion that an insurrection took place, something that Roberts and the other conservatives clearly do not want to do.

This was one of those arguments at the Supreme Court that cannot easily be seen as being “won” by either the liberal or conservative side.  It was clear to me by the end that the court will probably rule against Colorado and leave Trump on the state’s ballot, but the case did not have implications for the Supreme Court beyond the boundaries they faced today.  I think the issue the court will face when it takes up Trump’s claim of absolute immunity will be a far easier call because the issue they will face is not whether Trump was or wasn’t an “officer” of the government, but whether as a citizen the law applies to him the same way it applies to every other American.  They could split hairs over the meaning of the word “officer,” but there aren’t any hairs to split over whether Donald Trump is a king or not.