The Supreme Court will hear oral argument tomorrow in Trump v. Anderson, which presents the blockbuster question whether Donald Trump is disqualified from the presidency under section 3 of the 14th Amendment for having “engaged in insurrection.” The oral argument begins at 10:00. It’s slated to run for 80 minutes, but chances are that it will run twice that long. You will be able to livestream the audio on the Court’s website.
I’ll be listening to see which of these issues capture the attention of which justices:
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 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?
My own guess is that the case will be decided by a cross-ideological majority of at least six justices. But I’ll hold off on guessing which way.
I plan to live-tweet the oral argument on Twitter/X. My account is @EdWhelanEPPC. Especially if you are not familiar with the justices’ voices, you might find my live-tweet useful.