[This is the third installment in a series about the oral argument in Trump v. Anderson. The first installment focused on Justice Gorsuch's colloquies about
Officers of the United States." The second installment focused on Justice Jackson's colloquies about "Office under the United States." This third installment focuses on Justice Kavanuagh's colloquies about Griffin's Case and Justice Barrett's questions about federal courts.]
Most people assume that the leading argument Seth and I have advanced is "Officers of the United." Not so. In our law review article and in each amicus brief, we have led off with Griffin's Case. Indeed, we raised Chief Justice Chase's decision in a 2022 New York Times guest essay about Madison Cawthorn. We've always thought this precedent was an extremely important element of the Section 3 litigation. In the lower courts, Trump's counsel vigorously advanced Chief Justice Chase's decision. But before the Supreme Court, that advocacy vanished. Trump's opening brief barely mentions Griffin's Case in passing, and the reply brief does only a little more. Meanwhile, Trump's lawyers spent several pages on Moore v. Harper, which got a grand total of zero questions, as Griffin's Case which took more than half of the argument.
If I had to peg it before the case, I would have predicted that Chief Justice Roberts would most be drawn to Chase's decision. As it turned out the leading proponent of Griffin's Case was Justice Kavanaugh. Roberts was oddly muted on most issues.
Preclusion or Preemption?
The Petitioner's opening brief only mentioned Griffin's Case in passing. The very first question of the day came from Justice Thomas. He asked Jonathan Mitchell, counsel for Petitioner, "you didn't spend much time on your argument with respect to whether or not Section 3 is self-executing, so would you address that?" Mitchell explained that under Griffin's Case, which he stated was "correctly decided," "a state is not allowed to implement or enforce Section 3 of the Fourteenth Amendment unless and until Congress enacts." Michell's brief sounded in some sort of "preclusion," but at argument, he veered closer to preemption.
Justice Sotomayor described Mitchell's approach as "complete preemption." This is how I have perceived the effect of Griffin's Case. The relevant precedent would be Arizona v. United States: the states are disabled from legislating in this area of federal interest. No buoys, no barb wire, no ballots. A problem, of course, is that other provisions of the Fourteenth Amendment do not have such a preemptive effect. In response to Justice Sotomayor's comment, Mitchell said his approach was "rare" and a "one-off situation." In other words, Section 3 is different then Section 1. Later, Justice Kagan asked if Mitchell was making a "statutory preemption argument" based on the "combination of Griffin's Case plus the way Congress acted after Griffin's Case." Mitchell responded, "Yes." Later Mitchell said that they would "rely on preemption doctrines."
Diminishing Chase
Justice Sotomayor tried to diminish the relevance of Chase's opinion. She described it as a "non-precedential decision that relies on policy, doesn't look at the language [of the Fourteenth Amendment], doesn't look at the history, doesn't analyze anything [other] than the disruption that such a suit would bring." She asked, Mitchell "you want us to credit as precedential?"
I got the distinct sense that Jonathan Mitchell did not really believe Griffin's Case was correct. He said a few times, very deliberately, that Griffin's Case was "correct." But at other times, he hedged. For example:
And the answer to all three of those questions turns on whether this Court agrees with the holding of Griffin's Case. If Griffin's Case is the proper enunciation of the law, then a state cannot do any of the things Your Honor suggested unless Congress gives it authority to do so through implementing legislation.
This defense of Griffin's Case is tepid. And Mitchell went out of his way to acknowledge deficiencies in the case. Most academics are not even this charitable to the opposing side. (Hell, look at what law professors say about me on social media!) For example, Justice Kagan pointed out that if Congress can lift the disability by a 2/3 majority, "then surely it can't be right that one House of Congress can do the exact same thing by a simple majority." Rather than disputing the premise, Mitchell responded, "Yeah, there certainly is some tension, Justice Kagan, and some commentators have pointed this out. Professor Baude and Professor Paulson criticized Griffin's Case very sharply." Kagan ran with it, and said "Then I must be right." As I sat in the Courtroom, I asked myself, who is Mitchell representing here? He favorably cited the leading proponents the other side relied on. Meanwhile he threw Kurt Lash under the bus. I understand advocates have to acknowledge weaknesses in a position, but you don't have to go out of your way to credit opponents and weaken your friends.
Griffin's Case and Original Meaning
The strongest defender of Griffin's Case was Justice Kavanaugh. He did not necessarily defend the case as being correct as an original matter, but rather explained that Griffin's Case settled the matter. Indeed, he viewed Griffin's Case as indicia that was "highly probative" of the "original public meaning" of Section 3's "otherwise elusive language."
Did Mitchell agree that Griffin's Case was "highly probative." No. He only said it was "probative," and explained he did not rely on it "too heavily" because of Chief Justice Chase's decision in the Jefferson Davis case. He warned "that argument could potentially boomerang on us, which is why we didn't push it very hard in our briefing." He worried about a similar "boomerang" from the Foreign Emoluments Clause. As I sat there in the Court, I was stunned. Justice Kavanaugh was handing him an engraved invitation on a silver platter and Mitchell replied, "meh." (I'll return to the Jefferson Davis case below.)
Mitchell returned to this theme later. He said Griffin's Case was "relevant and probative for sure, but I think there is other evidence too that might perhaps undercut the usefulness of trying to characterize Griffin's Case as completely emblematic of the original understanding." Again, whose side is he on? These are points you can respond to in rebuttal, not volunteer. You don't concede their weakness in a softball question from a favorable justice without even offering a contrary argument.
Liquidating Griffin's Case
Later, Justice Kavanaugh tried to salvage Mitchell's argument about Griffin's Case. Kavanaugh explained that Griffin's Case is "reinforced because Congress itself relies on that precedent in the Enforcement Act of 1870 and forms the backdrop against which Congress does legislate." Kavanaugh continued, "So whether that's a Federalist 37 liquidation argument, it all reinforces what happened back in 1868, 1869, and 1870." Kavanaugh asked, "Do you want to add to that, alter that?" Thankfully, Mitchell said no.
The Tillman brief described Griffin's Case in very similar terms:
This Court should follow Griffin's Case. This decision, and its progeny, settled the meaning of Section 3….Although not binding, courts at all levels have seen Griffin's Case as persuasive. Griffin's Case has settled the meaning of Section 3. See Federalist No. 37 (Madison) (discussing liquidation).
During the Respondents' argument, Justice Kavanaugh repeated his understanding of Griffin's Case: "I think the reason it's been dormant is because there's been a settled understanding that Chief Justice Chase, even if not right in every detail, was essentially right, and the branches of the government have acted under that settled understanding for 155 years."
Liquidation is like a form of stare decisis on steroids. Even if the Court is not bound by Griffin's case, 155 years has sufficiently settled the matter to follow Chase.
The Case of Jefferson Davis
Justice Sotomayor tried to reduce the relevance of Griffin's Case in a different fashion. She said it was "not a precedential Supreme Court decision" by a Circuit Justice. Sotomayor also quoted Chase as saying that "Section 3 … [is] executing itself, needing no legislation on the part of Congress to give it effect." This quote was not actually uttered by Chase, but was from one of Judge Sheffey's lawyers. Chase did not agree with this statement on the record. (Judge Richardson made the same mistake in the Cawthorn case.) See Sweeping and Forcing at 492-93. Moreover, in the contemporaneous report from 1869, there is no indication from Chase that Section 3 is self-executing. See Sweeping and Forcing at 493-96. That statement was only published years later by a former Confederate general. Mitchell could have addressed the issues with the different reporting of the Davis case, but he only said, "Mm-hmm."
Worse still, Mitchell made no effort to reconcile Griffin's Case with the Case of Jefferson Davis. He accepted Justice Sotomayor's conclusion.
To repeat a colloquy mentioned above, Justice Kavanuagh said that Griffin's Case was "relevant to trying to figure out what the original public meaning of Section 3 of the Fourteenth Amendment." Mitchell would only say it was "probative" but he "didn't rely too heavily on the point that you're making, partly because" of the Jefferson Davis case. Mitchell worried that invoking the Davis case "could potentially boomerang on us, which is why we didn't push it very hard in our briefing." Let's assume this fear of boomerangs is rational. To continue the Aussie references, the fear of a dingo eating a baby is also rational. But why do you say it aloud at the Supreme Court? No duty of candor forces you to anticipate arguments that have not yet been raised, acknowledge your weakness, and tell the court why you aren't making that argument. Now Davis would only boomerang if you think Davis was wrong. But if you think Davis invoked Section 3 as a shield, there is no boomerang.
The Sword and Shield
I filed a motion for leave to participate in oral argument. One of the grounds that I flagged for the Court was Petitioner's unwillingness to accept the sword-shield dichotomy. We saw this trainwreckcoming from a mile away.
Amicus has explained that Chief Justice Chase's decision in Griffin's Case, 11 F. Cas. 7 (C.C.D. Va. 1869) (No. 5815), is consistent with the deeply rooted sword-shield dichotomy in federal courts' jurisprudence. "In our American constitutional tradition there are two distinct senses of self-execution. First, as a shield—or a defense. And second, as a sword—or a theory of liability or cause of action supporting affirmative relief." Tillman Amicus Br. at 8. The dissent below, citing Amicus's scholarship, applied the sword-shield dichotomy. Co.Sup.Ct.¶300 (Samour, J., dissenting). And the dissent observed that the Fourth Circuit "aptly adopted this distinction … thereby reconciling any apparent inconsistencies in Fourteenth Amendment jurisprudence." Co.Sup.Ct.¶301 (Samour, J., dissenting). Cale v. Covington, which discussed Griffin's Case, recognized "the protection the Fourteenth Amendment provided of its own force as a shield under the doctrine of judicial review." 586 F.2d 311, 316 (4th Cir. 1978) (emphasis added). The Fourth Circuit held "that the Congress and Supreme Court of the time were in agreement that affirmative relief under the amendment should come from Congress." Id. (emphasis added).
Relying on Amicus's scholarship, counsel for Petitioner advanced the sword-shield argument in the lower court proceedings.3 However, the Petitioner's Supreme Court merits brief makes no mention of this dichotomy, and provides only a brief treatment of Griffin's Case "in passing." See Resp. Br. at 42.
The sword-shield dichotomy reconciles Griffin's Case with the Supreme Court's other Fourteenth Amendment jurisprudence. Any ruling based on the dichotomy is likely to have collateral consequences on this Court's implied causes of action jurisprudence as well as the Bivens doctrine.
Amicus would present adversarial argument on the sword-shield doctrine, which would dispositively resolve this case.
Tillman and I were the first people to advance the sword-shield argument with regard to Davis and Griffin. And it has been cited repeatedly. During the Federalist Society Convention, Judge McConnell mentioned it as if it were such an obvious point. But during oral argument, it became abundantly clear that Mitchell would not advance the sword-shield dynamic. This argument was raised below, and was embraced by Justice Samour's dissent, citing Blackman-Tillman. The Colorado Republican Party, citing Blackman-Tillman, also advanced the sword-shield dichotomy. Mitchell did not argue it. To the contrary, he accepted the Plaintiffs' framing of the case that the Fourteenth Amendment is self-executing in all regards. Mitchell said, once again undermining Griffin's Case, "as a matter of first principles without Griffin's Case, it's a much harder argument for us to make because, normally, I mean, every other provision of the Fourteenth Amendment has been treated as self-executing." The Fourteenth Amendment is self-executing a shield, but not as a sword.
Pick any major civil rights case like Brown or Bolling. The complaints invoked Section 1981 or Section 1983–enforcement legislation. (We obtained the complaints in these cases, and others, from microfiche, in anticipation of oral argument.) This dichotomy reconciles Davis and Griffin. Davis invoked Section 3 as a defense to a criminal prosecution. He argued that Section 3 displaced the treason prosecution. By contrast, Griffin sought affirmative relief in a collateral challenge, so he needed a federal cause of action.
Direct/Collateral Challenges
Mitchell's failure to raise the dichotomy was most noticeable in a colloquy with Justice Barrett. Justice Barrett pointed out that Griffin's Case was a "collateral proceeding." Griffin sought relief in federal court to challenge a state court conviction. Barrett asked, "even if Section 3 is not a basis for collateral relief in [federal] habeas, which was new at the time, could Griffin have raised at his [state court] trial in direct appeal"? Barrett, a former FedCourts professor, was 100% on point.
Chase held that Section 3 could not be used as a sword to seek affirmative relief in a collateral proceeding. To seek such affirmative relief, Congress must provide a cause of action. But Section 3 could be used as a shield in a trial court, or on direct appeal. Defendants in criminal cases can always raise provisions of the Constitution as a defense. Indeed, Jefferson Davis (see above) raised Section 3 as a defense in his criminal prosecution. For example, a defendant can argue that a criminal prosecution violations a provision of the Bill of Rights. And those arguments can be raised at trial, or on direct review. The problem only arises, as Justice Barrett observed, when Griffin sought to invoke a novel federal habeas remedy in a federal collateral challenge.
The sword/shield dichotomy neatly answers Justice Barrett's question. And the dissenting justice below expressly adopted it. See Co.Sup.Ct.¶299 (Samour, J., dissenting) (citing Blackman & Tillman, Sweeping and Forcing, at 484–505). How did Mitchell answer Justice Barrett's question? He said "no." Justice Barrett responded, incredulously, "why?" Mitchell said, the "court would have to reject the rationale of Griffin's Case to accept what Your Honor was suggesting." No! Once again, Mitchell is undermining one of the few authorities that directly support his case. Justice Barrett retorted that Griffin's Case was a "collateral habeas proceeding." So "Why wouldn't it work in a trial for him to challenge [Judge] Sheffey's constitutional ability to adjudicate his case?" Mitchell would not budge from his complete preemption argument. He said "Griffin's Case holds that only Congress can provide the means of enforcing Section 3." But no legislation is ever needed to invoke the Constitution in a criminal prosecution.
Now you see why Mitchell is willing to concede that the Jefferson Davis case is in tension with Griffin's Case. He thought that Davis could not raise Section 3 as a defense, so Chase was wrong. As I've noted before, Mitchell was my habeas corpus professor at George Mason in 2008. I feel somewhat hesitant in criticizing him here, but I think Professor Barrett is correct. At a minimum, an advocate could have taken the sword/shield dichotomy to reconcile Griffin's Case and the Case of Jefferson Davis, rather than sacrificing the point. The Colorado Republican Party raised this argument. Maybe the ACLJ's Jay Sekulow should have had some time at the podium. And I suspect if Justice Jackson was agreeing with him, Sekulow would have said "Hallelujah!"
Final thoughts on Mitchell
Why didn't Mitchell make many potentially winning arguments about "Officer of the United States" or "Office under the United States"? My guess: he simply did not find these arguments persuasive, so he refused to advance them. Why didn't Mitchell make potentially winning arguments about Griffin's Case? Again, he did not find these arguments persuasive, so he refused to advance them.
That sort of posture works in an academic forum; not at the Supreme Court. In hindsight, perhaps, we know that the Justices came out of the gate in opposition to disqualifying Trump. But none of that was certain ex ante. Every vote could have been up for grabs. But Mitchell cut off several possible paths for victory from the get-go. This approach would recur throughout the argument. Mitchell's lead argument was made with one hand tied behind his back.
Here is my unvarnished opinion about Jonathan Mitchell, whom I've known for about 15 years. He is a scholar first, and an advocate second. (And I say this as a law professor who sometimes plays a lawyer on TV.) Mitchell does not want to make arguments that he does not completely believe in. There are wide bounds of advocacy that are permissible, and zealous advocates should be comfortable within those bounds. But Mitchell put binders on his case. What made his advocacy in the fetal heartbeat litigation so ruthless–genius even–is that he wrote the statute based on his scholarship. He is the master of the writ of erasure fallacy. He changed the way I think about federal courts jurisprudence. But he came to the Section 3 case about three months ago. As far as I can tell, he had never written about it before. And he seemed extremely uncomfortable taking positions that Trump's lawyers vigorously made in the lower court. And remember, Trump prevailed in the trial court on the office- and officer-issue. These arguments are squarely on the wall. But rather than embrace them fully, Mitchell fought back against favorable questions from (check notes) Justice Jackson, and tarred Kurt Lash as engaging in "law office history." Why?
Mitchell will likely win a large margin: 9-0 or 8-1 or 7-2. Trump will declare a yuge victory. But it will not be because of Mitchell's advocacy. The Justices came into the Court unwilling to disqualify Trump. And, despite his best efforts, I don't think Mitchell lost Justice Jackson's vote.
But should this case come back to the Court in a future posture, where Congress is making the decision, Trump would be well served to find counsel willing to make all of the arguments about "Officers of the United States" and "Office under the United States."
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