A Response to a Journalist

 

Hello again, professors, I’m sorry to come back to you so soon with yet another question, but I was wondering if you had any comments about the Supreme Court’s decision to take up the Colorado case. 

Seth: It was expected by most that the United States Supreme Court would hear this appeal. That result is not surprising. Albeit, I had expected a more demanding briefing schedule and that the oral argument would have been held some time in mid or late January, and not as late as February 8, 2024. I do not think this late schedule is good for Trump’s team. 

Were there any persuasive arguments, in your view, for denying cert? 

Seth: I think that is the wrong question. As far as I know, the parties—on both sides—supported cert or, at least, they did not actively oppose it. I believe there was some disagreement among the parties as which questions were cert-worthy, but that is a lesser disagreement. 

What do you expect the most pivotal issue(s) to be? 

Seth: The usual ones. Is the president an “officer of the U.S.” as that phrase is used in Section 3 of the Fourteenth Amendment? Is the presidency an “office under the U.S.” as that phrase is used in Section 3? Does enforcement of Section 3 by private parties seeking affirmative relief against the government require prior congressional authorization? Does the relief sought by Plaintiffs trespass on the state Republican Party’s First Amendment free-speech and freedom-of-association rights? Is the relief sought by Plaintiffs barred by the Electoral Count Act? Does Congress, at the Joint Session (which open the states’ electoral certificates and tabulates the electoral votes), have exclusive jurisdiction to determine issues related to presidential qualifications and eligibility? 

What will you personally be looking for in the oral arguments? 

Seth: A good seat.

All the best,

Seth

 

Seth Barrett Tillman, ‘A Response to a Journalist,’ New Reform Club (Jan. 6, 2024, 2:18 PM, 7:18 local time), <https://reformclub.blogspot.com/2024/01/a-response-to-journalist.html>;