Donald Trump is effectively on his method to turning into historical past’s best litigation loser ever. However within the multifront struggle of Trump v. Seemingly Everybody Else, he has simply prevailed in a single small skirmish: The Battle of the Questions Introduced.
Late Friday afternoon, the Supreme Courtroom of the USA agreed to evaluation the Supreme Courtroom of Colorado’s choice that held Trump ineligible to serve once more as president beneath Part 3 of the Fourteenth Modification, the supply barring insurrectionists from public workplace. That got here as no shock.
The nation’s excessive courtroom additionally ordered an unusually quick schedule, with oral argument to be held in 34 days—on February 8. That, too, got here as no shock. All events to the case agreed that the Courtroom ought to hear the case, and accomplish that expeditiously, in order that states and voters might know earlier than the presidential-primary season ends whether or not Trump was eligible for workplace.
What was uncommon was the Courtroom’s option to grant evaluation with out specifying the actual authorized points it intends to resolve.
Each the Colorado Republican Celebration and Trump had petitioned the Supreme Courtroom to take the case. The Courtroom granted Trump’s petition and didn’t rule on the Colorado GOP’s. What’s considerably odd about that’s that Trump’s petition was itself odd—very odd. Within the days of Marbury v. Madison, the Supreme Courtroom would take up whole instances, and the entire points introduced by them. Because the regulation professor Ben Johnson just lately put it in The Atlantic, the Courtroom “was specific that its obligation was ‘to offer judgment on the entire report’—no cherry-picking of questions.” Largely due to the mind-numbing quantity of litigation presenting federal points in the USA right now, nonetheless, the Supreme Courtroom basically now not does that when it evaluations lower-court choices. It not solely chooses what instances to take; it additionally chooses which particular points inside these instances it desires to resolve.
The Courtroom ordinarily makes these selections on the idea of the problems the events searching for evaluation level out in what is named their “petition for certiorari.” Consequently, arguably a very powerful a part of a petition for certiorari doesn’t seem within the physique of the temporary; it seems earlier than the desk of contents, on the web page simply inside the duvet. It’s there that Rule 14.1(a) of the Supreme Courtroom Guidelines requires petitioners to listing “the questions introduced for evaluation, with out pointless element.” The questions should be “quick,” and never “argumentative or repetitive.” Most vital: “Solely the questions set out within the petition, or pretty included therein, shall be thought of by the Courtroom.”
These are speculated to be particular questions of regulation and never info. In different phrases, you possibly can ask the Supreme Courtroom to resolve whether or not a courtroom of appeals appropriately held that the Interstate Trafficking in Unlawfully Shiny Widgets Act of 2024 applies to yellow widgets, however not whether or not the district courtroom appropriately discovered Acme Firm’s widgets to be yellow and never chartreuse. The Supreme Courtroom nearly at all times takes lower-court factual findings as they arrive.
In accordance with these practices, the Colorado GOP’s petition for certiorari introduced three discrete questions of regulation: whether or not the president is roofed by Part 3 of the Fourteenth Modification; whether or not Part 3 could be enforced solely by congressional laws; and whether or not Trump’s disqualification violated the celebration’s First Modification rights.
Trump’s petition took a completely completely different method—one which didn’t conform with the abnormal guidelines and practices. His legal professionals introduced just one query, and it wasn’t a discrete or pointed query of regulation however relatively a blunderbuss one: “Did the Colorado Supreme Courtroom err in ordering President Trump excluded from the 2024 presidential main poll?”
This was a Cuisinart of a query. Solely within the physique of Trump’s petition might you discover all of the components that went into it. In its response, opposing counsel took Trump’s legal professionals to process—I believe appropriately—for “lump[ing] no fewer than seven distinct authorized and factual points right into a single imprecise query introduced.”
There are not less than three potential causes Trump’s counsel took this method. One could also be a relative lack of expertise within the Supreme Courtroom. Trump, as everyone knows by now, has bother retaining legal professionals appropriate for the duties he presents them with, as a result of legal professionals worth their reputations and their licenses. Simply the opposite day, even Mark Meadows was capable of rent a former solicitor normal to convey a case to the Supreme Courtroom. However one of the best legal professionals gained’t work for Trump.
Another excuse is the “viewers of 1” drawback that everybody working for Trump faces. The Cuisinart query reeks of narcissism. It says: Take a look at what they did to me! So unfair! It interprets simply from the unique Trumpish: Wasn’t the Colorado Supreme Courtroom so very, very imply to me?
However I’d wager essentially the most important rationalization is the weak point of Trump’s case.
While you ask “Ought to Trump be stricken from the poll?,” the standard response you get is: Are you critical? How might or not it’s potential to take a celebration’s main candidate off the poll? I do know as a result of that was basically my preliminary response—till I actually began digging into the case and noticed how Trump shouldn’t prevail on any of the subsidiary points that ought to really resolve the case.
Certainly, if you decide aside the various subsidiary authorized points swirling in Trump’s certiorari blender, they dissolve one after the other. Take the rivalry that it’s too troublesome for courts to determine requirements by which to find out what it means to “interact” in an “rebellion.” The easy response to that’s: You’re kidding, proper? You imply the courts can divine the which means of “equal safety of the legal guidelines” beneath Part 1 of the Fourteenth Modification however not “rebellion” beneath Part 3?
Or the argument that the president will not be an “officer of the USA” beneath Part 3. Wait, what? You’re suggesting {that a} doc that refers back to the presidency as an “workplace” actually dozens of occasions, and requires the holder of that workplace to take an “oath of”—guess what?—“workplace” says that the particular person holding that workplace isn’t an officer? Oh, and take a look at this brand-new analysis paper that incorporates an avalanche of historic materials demonstrating that, when the Fourteenth Modification was ratified, “the President was frequently regarded as and talked about as an officer of the USA.” Do you know that, in quite a few proclamations, President Andrew Johnson variously referred to himself as an “officer,” the “chief govt officer,” and the “chief civil govt officer” of the USA?
The petition additionally claims that Part 3 requires Congress to enact implementing laws beneath Part 5 earlier than Part 3 could be enforced. Sorry. That’s not what the Supreme Courtroom has held as to different provisions of the Reconstruction amendments, together with the Equal Safety Clause.
And, to prime issues off, we discover this query buried deep in Trump’s petition: Does the Supreme Courtroom actually suppose the previous president “engaged in rebellion” beneath Part 3? However that’s a factual query, the kind the Courtroom doesn’t usually resolve. The Colorado courtroom reviewed each potential which means of “rebellion,” and that also didn’t assist your case. And even your legal professionals don’t suppose the Supreme Courtroom’s going to avoid wasting you there, or else they wouldn’t have relegated it to web page 26 of your temporary.
In different phrases, Trump’s Cuisinart tries to mix a bunch of weak points right into a stronger one. In appellate courts, that normally doesn’t work.
All of this nonetheless leaves—highlights, actually—a thriller: Why did the Supreme Courtroom let Trump’s query stand? Ordinarily, when the Courtroom doesn’t just like the questions introduced by a certiorari petition, it does one among two issues: It doesn’t take the case, or, if it does take the case, it rewrites the questions because it sees match. And, actually, Trump’s opponents requested the Courtroom to interrupt the large query right down to its element elements.
However the Courtroom didn’t try this. And it in all probability didn’t try this as a result of making an attempt to get 9 folks to agree on find out how to reformulate the questions introduced would have taken time when time is of the essence. The Courtroom and the events should type out within the subsequent 30-odd days what the case will in the end be about.
That’s excellent news and dangerous information for each side. It’s excellent news for Trump, in that the case is one massive seize bag by which the Courtroom can dig round till it finds a way (possibly not a very convincing one) to reverse the choice—if that’s what it’s decided to do. The Courtroom might find yourself as soon as once more proving the reality of Justice Oliver Wendell Holmes Jr.’s well-known adage that “Nice instances like arduous instances make dangerous regulation.”
Or possibly not. The explanation the Courtroom needed to take the Cuisinart query was as a result of Trump and the GOP couldn’t discover a dispositive authorized proposition that the Colorado courtroom clearly bought mistaken.
Briefly, something and all the pieces appears to be in play, and the individuals who suppose the Courtroom goes to reverse it doesn’t matter what, or discover a method to elide the problems someway, could be proper. However many instances on enchantment evolve throughout briefing and argument, and by the point oral argument is over on February 8, we might all be centered on a facet of the case that hasn’t been developed but. Trump and his allies haven’t discovered the magic reply, and people who suppose they’ve, or that the Courtroom will do it for them, might effectively discover themselves stunned in a matter of weeks. We’ll quickly see exactly how nice and the way arduous the case seems to be.
