[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.
