Some Impressions From Yesterday

I was lucky to have a seat in the Court yesterday and wanted to share some thoughts while they are fresh.

First, there is a tradition--dating back to the Marshall Court--of Supreme Court arguments as a social occasion. There was some of that spirit. The line to enter for members of the Supreme Court was long. People were dressed formally. I was able to connect with lawyers and scholars involved in the litigation (some of whom I'd met before and some not). I met the lead plaintiff and sat behind her. It was fun.

Second, the security at the Court is ridiculous and sad. This was my first oral argument in person since the 1990s. At that time, you just stood in line and took your seat. It's nothing like that now. Granted, this was a high-profile case. Maybe ordinary cases are different. In general, though, the openness of government buildings in Washington has declined sharply from when I lived there.

Third, Justice Barrett was the best questioner. She understood the case extremely well. Some of the other Justices, frankly, did not. Normally I'm not in a position to assess that because I don't know all of the details--I'm more or less a casual listener. But I'm inclined to pay more attention to her questions in cases going forward.

Fourth, the answer to the Court's uniformity concerns is pretty simple--Congress can create a uniform process. Saying that the Constitution requires Congress to do so, though, is a non sequitur. Here's what I said about this in a Lawfare essay in January 2021:

[T]here is the question of whether Section 3 is self-enforcing. The answer is probably not. In 1869, Chief Justice Salmon P. Chase issued a circuit opinion holding it was not. This opinion was not well reasoned, as I explain in my paper on Section 3, and might not be followed by the current Supreme Court. But, then again, the court might come to the same conclusion today. 

Congress enacted Section 3 enforcement legislation in 1870 that authorized the Department of Justice to bring quo warranto actions—a common-law writ asking, “by what warrant” does someone lawfully hold office—to oust from office some ineligible officials. But Congress repealed this statute in the 1940s as part of a broad cleanup of “obsolete” provisions. If Chase was right, then Congress would be well advised to enact new Section 3 enforcement legislation. The quo warranto provision of the 1870 Ku Klux Klan Act could be reinstated with some adjustments. For example, the act authorized actions against ineligible officials, not ineligible candidates. There are instances, though, where enforcement should be authorized before elections are held so as to resolve any ex ante uncertainty about whether someone can serve.

I was an advocate of federal enforcement legislation then because (1) the process would be better and (2) the Court might wrongly say that an Act of Congress was required to enforce Section Three. Was there any real prospect of getting federal legislation in 2021? Probably not. The issues were too novel and complex for quick congressional action.

Finally, it is strange to say the least that the only person disqualified by Section Three after January 6th, 2021 may be Couy Griffin, a New Mexico County Commissioner. The Supreme Court's opinion is unlikely to help him. He'll be a constitutional trivia answer for all time.