Thread by @JonathanTurley

In an hour, the Court will hear arguments in Trump v. Anderson. Here is a breakdown of the issues and what to expect. I will be joining the live coverage and doing my usual running analysis on Twitter/X. jonathanturley.org/2024/02/08/sup…

...Notably, Jason Murray, who will be arguing for Republican voters supporting disqualification, clerked for Justice Kagan. He also clerked for Justice Gorsuch when he was an appellate judge on the Tenth Circuit...

...The case brings back memories for some of us covering Bush v. Gore, the first case with audio access to the arguments. I was then doing legal analysis for CBS and it seems like just yesterday . . . not 24 years ago...

...The Court has long struggled with the aftermath of that decision and does not relish the chance to again enter the fray of a close presidential election. jonathanturley.org/2024/01/03/a-s…

...Yet, Chief Justice Roberts Roberts once stated that “the most successful chief justices help their colleagues speak with one voice.” This is that moment for the Court to bring clarity and finality ...and hopefully unanimity. jonathanturley.org/2023/12/21/the…

...The first question is from Justice Thomas on self-executing, the second question. Jonathan Mitchell is arguing for the need of legislative implementing legislation...

...Chief Justice Roberts is following up and Mitchell is arguing that, even in the case of established insurrectionists, they could still run for election and win. It would then depend on an action of Congress to lift a disqualification.

...Justice Sotomayor is pushing back hard on the arguments against self-execution. She is saying that self-executing is consistent with other provisions. She also emphasized that Griffin's Case is not controlling precedent on the issue. She clearly does not find the case persuasive...

...What is interesting is Sotomayor's probing of whether there may be a difference in applying Section 3 to state officials as opposed to federal officials or the president.

...Justice Kagan has asked a very good and tough question that, if you take out Griffin's Case and the later congressional action, what would the interpretation be on self-executing. However, Justice Barrett is coming to suggest a more limited interpretation that Section 3 may only state officials. However. Mitchell notes that that would not end the issue.

...Justice Alito has come in to object to using the term self-executing. The issue is who can enforce and Alito has clearly indicated that he does not see the authority here as resting with Colorado. Alito eluded to the dangerous potential for this theory.

...Justice Sotomayor just asked Mitchell is he "is setting up" the possibility of some president running for a third term to bar the states on term limits. Mitchell responded "of course not."

...There appears to be confusion on the Court. Mitchell was referring to "Term Limits" as in U.S. Term Limits, Inc. v. Thornton. Sotomayor asked why he kept referring to the qualification of term limits in the Congress. Roberts stepped in to clarify that this was a reference to the case.

...Just as an aside, I like Jonathan Mitchell's style. He is being very transparent and honest on the balance of these arguments...

...They are now turning to the first question on what officers are covered. Justice Jackson is leading off...

...Jackson is probing the list argument that the president is not listed expressly. She is asking why Trump is not pushing that argument harder.

...Justice Gorsuch is asking a great question on why the terms "office" and "officer" should be given such different meanings in Mitchell's arguments. Mitchell is responding with reference to the incompatibility clause...

...Justice Sotomayor just said that Trump is making a "gerrymandered rule" that would interpret the rule as not applying to Trump...

...Justice Jackson's questions are arguably the most interesting in returning to the exclusion of the president on the list. She is raising the history to explain why they might not have been concerned with presidents for disqualification. She has repeatedly stated that she is "surprised" why Trump is "giving the argument up." Mitchell gave an honest answer that there was some concern expressed about presidents in drafting so that they did not want to focus on that aspect.

...Jackson also asked how they would have to rule be make sure that this matter did not return as a lingering matter.

...What is most striking about the questions to Mitchell is the absence of discussion on what Jan. 6th was an insurrection. Now Jackson is raising it and asking whether this was an insurrection.

...Jackson is asking why it must be an "organized effort" as opposed to "a chaotic effort." Mitchell called Jan. 6th "shameful" but explained that it was not an insurrection. Mitchell did an excellent job and we are now hearing from Jason Murray...

...Murray is arguing that "this case does not come down to mere prepositions" in distinguishing the language applying the rule to officers and offices.

...Thomas is first up and noting that there is at best one case whether this power was used despite the bitter and divisive time. He notes that one would expect national candidates to be disqualified if this reading was correct that states could use this power...

...Chief Justice Roberts asked a deadly question of why the 14th Amendment (which is designed to limit the power of states) would be used to enhance this power of the states. He suggested that Murray's arguments are "ahistorical."

...Kavanaugh just agreed with Roberts that there is "no historical evidence" to support this interpretation of Section 3 in terms of state power.

...Kagan just asked "why a single state could decide who is president of the United States... if you were not from Colorado ... that seems quite extraordinary, doesn't it."

...Kagan's question is what the disqualification advocates did not want to hear from her. She could be key in securing a heavy majority or unanimity in rejecting this decision...

...Barrett is joining the pile on and saying that, under Murray's argument, they are "stuck" with the record of the state. She noted that "it just doesn't seem like a state call."

...Barrett is laying waste to the argument that they should just watch the tape of Jan. 6th and reach their own conclusions...

...Jason Murray may be entitled to combat pay but this is not going well for disqualification advocates thus far.

...Gorsuch methodically showed that this provision is unique -- dispensing with the analogies to states enforcing age qualifications. After all, Congress can remove this disability...

...Chief Justice Roberts is raising how a ruling in favor of disqualification would create a "daunting prospect" of tit-for-tat moves by states. Roberts laid out why this would be madness in sorting out elections.

...Roberts is saying "you are avoiding the question" in the obvious danger of states differing on what constitutes an insurrection.

...Murray argument is turning in a running of the gauntlet with justices lined up to develop serious blows to the disqualification arguments and their implications...

...Justice Alito just asked Murray if military officers could have refused to take orders from a president who engaged in insurrection. Murray suggested no. But Gorsuch jumped in to say you said he was disqualified "from the moment it happens." This is a hit below the waterline for Murray and he is struggling.

...Gorsuch is delivering the coup de grace to ask why he was not immediately disqualified without any due process. "On your theory, would anything compel a lower official to object a former president.?" He then hit Murray for "trying to change the hypothetical."

...Murray stabilized the ship a little but saying that, while they are in office, impeachment is the only remedy for removal in such a circumstance.

...Alito just hit Murray again, saying "you are really not answering my question and it is really not helpful if you are going to do that."

...Alito raised the controversial relevance of Colorado on Peter Simi, a professor of sociology at Chapman University who said that he could divine secret meaning hidden in coded language.

...Kagan is again raising what must be concerning questions for the disqualification advocates. She is saying that Murray is ignoring the "broader principle" limiting the power of states on national questions like this one. "What's a state doing deciding who other citizens get to vote for president?"

...Murray is taking on water again. Justices keep pushing him to the edges of the map and he is struggling on the implications.

...Gorsuch again raised the incompatibility clause and raising the conflict with the interpretation of officer as being so broad. Murray just admitted that "it is a fair point." He conceded a bit of this point and Gorsuch quickly moved on.

...Alito is raising the anti-democratic aspects of the effort and "the effect of disenfranchising voters to a significant degree."

...Jackson is again raising the lack of uniformity in states using this power. She is again asking whether presidential elections should be excluded and indicated that she is still not satisfied on that point.

..."Why didn't they put president . .. on the list." This is a significant problem for disqualification advocates. The questions suggest that Jackson does see a real problem on the first question.

...Murray is finally done. That was rough. He took more arrows than Saint Sebastian and they were coming from both the left and the right of the court. Shannon Stevenson is now up.

...Roberts and Alito have noted that some states have no provision for judicial review of these decisions by secretaries of state.

.....Jackson is saying at best this is ambiguous and "if there is an ambiguity, ... why would we construe it against democracy?"