This morning SCOTUS held its oral arguments in Trump v. Anderson, Trump’s appeal of the SCOCO decision banning him from the Colorado Republican primary ballot.

The arguments were scheduled for 80 minutes but ran a little over 2 hours. I’ve read a large number of SCOTUS transcripts after the fact, for fun, but this was the first time that I actually listened to an oral argument in real time; it was an interesting experience made slightly confusing by the fact that I don’t know the justices’ voices that well, but I mostly guessed correctly who was speaking, only confusing Roberts with Gorsuch.

The general consensus is that things went very well for Trump. Halfway during the arguments, electoral law expert Rick Hasen predicted a 9-0 or possibly 8-1 decision for Trump, with Sotomayor the only possible holdout. Shortly after things ended, Neal Katyal (a former #2 in the Solicitor General’s office) went on TV and said he’s listened to 400 SCOTUS oral arguments and made 50 himself, and that today went about as badly for the respondents as any SCOTUS oral argument he can remember.

My preview of the legal issues was largely on point: They indeed talked a lot about Griffin’s Case, and they talked a lot about whether the President is an “officer of the United States” to which Section 3 of the 14th Amendment could apply. On that point, I was rather surprised by Justice Jackson, who seemed to be advocating a point of the view that the framers of the 14th Amendment weren’t worried about the potential for a Confederate to assume the Presidency but instead were far more worried about Confederates infiltrating the government at lower levels, and hence the lack of explicit mention of the President within Section 3 may have been intentional. It was then that I think it became crystal clear that Trump would be winning this case.

But, winning on what grounds?

That remains unclear. My feeling from listening to the argument is that SCOTUS may be inclined to rule that a state does not have the right to enforce Section 3 against a federal official, as opposed to a state official. Chief Justice Roberts made an interesting argument to the effect that it would be very strange to read the 14th Amendment as giving a state that power, given the over-arching purpose of that amendment:

ROBERTS: “I mean, the whole point of the Fourteenth Amendment was to restrict state power, right? States shall not abridge privilege of immunity, they won’t deprive people of property without due process, they won’t deny equal protection. And on the other hand, it augmented federal power under Section 5. Congress has the power to enforce it. So wouldn’t that be the last place that you’d look for authorization for the states, including Confederate states, to enforce … the presidential election process? That … seems to be a position that is … at war with the whole thrust of the Fourteenth Amendment and very ahistorical.“

There was also a lot of discussion, largely led by Justice Alito, about the practical difficulties involved if one state (Colorado) had a finding of fact based on the record it had developed that Trump was an oath-breaking insurrectionist, and some other state, based on the record it had developed, reached the opposite conclusion. These difficulties arguably contra-indicate the existence of a state role in adjudicating this type of situation.

If SCOTUS were to choose to resolve the case strictly on those grounds, then they could kick the can down the road on other issues, like whether Section 3 could actually apply to Trump. Where would that leave matters, more globally?

To that effect, I noted an interesting exchange between Justice Jackson and Jason Murray, the lawyer for the CREW respondents:

JACKSON: “If we think that the states can’t enforce this provision for whatever reason in … the presidential context, what happens next in this case? I mean … is it done?“

MURRAY: “...I think this case would be done, but I think it could come back with a vengeance because ultimately members of Congress … may have to make the determination after a presidential election if President Trump wins about whether or not he is disqualified from office and whether to count votes cast for him under the Electoral Count Reform Act. …“

JACKSON: “And there is no federal litigation, you would say?“

MURRAY: “Well, that’s correct, because there is no federal procedure for deciding these issues, short of a criminal prosecution.”

This latter point calls back to an earlier discussion between Murray and Justice Kavanaugh:

KAVANAUGH: “[S]ome of the rhetoric of your position seems to suggest, unless the states can do this, no one can prevent insurrectionists from holding federal office. But, obviously, Congress has enacted statutes, including one still in effect. Section 2383 of Title 18 prohibits insurrection. It’s a federal criminal statute. And if you’re convicted of that, you are — it says, “shall be disqualified” from holding any office….”

MURRAY: “That’s absolutely right, Your Honor. But I would just make the point that the framers of Section 3 clearly understood that criminal prosecutions weren’t sufficient because oftentimes insurrectionists go unpunished, as was the case in the Civil War, and that the least we can do is impose a civil disqualification penalty so that even if we don’t have the stomach to throw someone in jail –“

KAVANAUGH: “Well, they had the quo warranto provision that was in effect then from 1870 until 1948, but then, obviously, that dropped out and hasn’t been seen as necessary since then.“

Wait, quo what? And what does 1948 have to do with it?

Apparently, after the ruling in Griffin’s Case, Congress had passed the Enforcement Act of 1870, which among other things enabled federal prosecutors to issue a writ of quo warranto to remove a government official who was disqualified under Section 3. However, for reasons that nobody alive seems to know, in 1948 those quo warranto provisions were repealed as part of a technical effort to codify existing statutes.

So, because somebody 76 years ago reached the conclusion that some language in a then-78-year-old statute must be obsolete, it appears that we no longer have a federal judicial vehicle to enforce Section 3. Terrific.

But, as Kavanaugh notes, we do have a federal statute against insurrection. Of course, Trump’s lawyer pointed out that Trump believes presidential immunity would insulate him from charges under that statute, notwithstanding this week’s D.C. Circuit decision.

More importantly, however, Special Counsel Smith’s indictment in the Jan 6th federal case does not include insurrection as one of the charges. Six months ago, when Smith’s indictment came out, the decision to not charge Trump with insurrection was generally hailed as a prudent tactical prosecutorial decision, one that would smooth the way towards a speedier trial focused on charges that were easier to prove.

To sum up: Based on today’s oral arguments, it seems certain that SCOTUS will not make a ruling to the effect that Trump is disqualified under Section 3, but at the same time I am unconvinced that SCOTUS will make a ruling to the effect that he is not disqualified under Section 3. Either way, it would appear Trump is going to remain on ballots throughout the 2024 electoral cycle. It is hard to know what else to say until we see the actual SCOTUS opinion.