[This post will be the first installment in a series about oral argument in Trump v. Anderson.]
I'll put my cards on the table: I was very critical of Justice Gorsuch's decision in Bostock. To be clear, I did not disagree with his textualist methodology. Rather, I disagreed with how he applied it. Specifically, I faulted Bostock for starting with modern precedents that were not themselves textualist. But when Justice Gorsuch starts at the very beginning, from first principles, he is at his best. And I have always commended Justice Gorsuch's willingness to follow text, even if it leads to counterintuitive results. For that reason, the Tillman amicus brief cited Bostock in several places to respond to any arguments based on the absurdity doctrine:
The Framers were not omniscient. They had no reason to think about a person who: (1) was elected as President; (2) but had never before taken any other constitutional oath; (3) then is alleged to have engaged in insurrection; and (4) then sought re-election. "Should we consider the expectations of those who had no reason to give a particular application any thought …?" See Bostock, 140 S.Ct. at 1751. No. Rather, "the limits of the drafters' imagination supply no reason to ignore the law's demands. When the express terms of a [text] give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law." See id. at 1737. In 1868, under the written word of the Constitution, the President was not an "Officer of the United States."
