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What To Watch For In This Mornings Supreme Court Oral Arguments On Trump Eligibility [1]

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Date: 2024-02-08  

This may be the biggest Supreme Court case of the 21st Century if the court actually steps up and disqualifies Trump. The 2024 election will, in an instant, be completely reshaped, as will Congressional politics. For example, I'm betting Republicans suddenly support that border bill if the Supreme Court neuters Donald Trump. An actual decision is probably a week or more away, but here's some things to look at today when attempting to read the oral argument tea leaves.

Substantive Arguments v. Procedural Arguments: First let's define the terms.

Substantive arguments are those that focus on whether 14.3 excludes Trump. The questions of whether there was an insurrection and, if there was, whether Trump engaged in it. Also included in this is whether Trump is an "officer" for 14.3 purposes and whether he took an oath to support the Constitution of the United States.

Procedural arguments are those that the trial court in Colorado and dissenters on the Colorado Supreme Court focused on. These arguments forsake addressing the substantive merits and would rule in favor of Trump on jurisdictional or procedural grounds. They include arguments that the courts can't address the issue, that only Congress can, or that the issue isn't resolved until the objection process during electoral college certification.

A compelling amicus brief argues the court should not do that and has a duty to address the substantive questions directly. I believe the brief is correct. Punting by deciding procedurally has potentially catastrophic effects down the road by throwing the entire Presidential election into ambiguity. The nation would be in an electoral Twilight Zone from November, until the swearing in, and the last time that happened we got the very insurrection that is at issue before the court today. If Trump is to be eliminated by 14.3, it must be now. I view which of these the court focuses on today as the single most important thing to watch for. Conventional wisdom is that the court takes the cop out of deciding for Trump on some procedural/jurisdictional basis rather than taking the substantive question head on.argues the court should not do that and has a duty to address the substantive questions directly. I believe the brief is correct. Punting by deciding procedurally has potentially catastrophic effects down the road by throwing the entire Presidential election into ambiguity. The nation would be in an electoral Twilight Zone from November, until the swearing in, and the last time that happened we got the very insurrection that is at issue before the court today. If Trump is to be eliminated by 14.3, it must be now.

Thing is focus on the substantive is bad for Trump. Trying to argue that it was not an insurrection, or that Trump did not engage in it (as defined by precedent) is really hard to do. A focus today on substance is bad for Trump.

Commitment To Originalism: Originalism is supposedly the guiding star of conservative jurisprudence. Today will be a test of their commitment to it. Originalist arguments, at least on the substantive questions, strongly disfavor Trump. If original understanding and intent is applied to whether it was an insurrection, whether Trump engaged in it, and whether Section 14.3 applies to the office of President, Trump has a very rough road. In this decision we will see whether conservative commitment to originalism is genuine, or just talk, applied when convenient to get the results they want but discarded when it takes them to a place they don't want to be.

Cracks In the Conservative Wall: Conservatives have a 6-3 majority on the court. At least two of them have to flip against him. Some won't turn on Trump (e.g. Thomas) no matter what appalling hypocrisy they must defend. However, others might. Be listening to the approach particularly of Chief Justice Roberts. Gorsuch authored a decision cited by those seeking to bar Trump from the ballot which could make things interesting. Kavanuagh and Barrett are also potential wild cards in this. We shall see.

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