Up Close at the Supreme Court yesterday

Prediction: 

Expect a 9-0 decision to reject the Colorado decision.

That is what attorney Conde Cox told me in a vigorous discussion this recent New Year's Eve. 

He said if and when there was an oral argument on the case in front of the Supreme Court, he would be there to witness it up-close. He was there yesterday. He wrote me to reiterate his prediction: 9-0 to reverse Colorado.

Courtroom Sketch by Bill Hennessy for PBS

I took the other side of the friendly argument at the holiday party. My predictions were based on a presumption that the Supreme Court majority would cloak a rankly political decision in a veneer of legal justification. They are expected to reverse Colorado, I argued, because they want to help Trump, and because they don't want the controversy that would come from deciding ballot access state by state. But they just might surprise us, I argued. The majority is more intent on helping Republicans and conservative policies than in helping Trump, and they see that Trump is now a liability to the GOP.  So watch for them to affirm Colorado so Republicans could replace Trump with a less-flawed candidate who would defeat Biden by a landslide. 

Conde Cox said I was wrong. He argued with the advantage of  expert knowledge of the law generally and of the Supreme Court in particular. Cox is a commercial and business dispute litigator, with deep experience in arcane federal bankruptcy court procedure. For the last decade he has been named by his peers as a Thomson-Reuters 'SuperLawyer' in the field of Business Bankruptcy. He now lives in Ashland, Oregon.

From his website

Guest Post by Conde Cox

 I was personally in attendance at the Supreme Court today for the Trump Colorado ballot disqualification case for nine hours. During the nearly three hours of oral argument in the Court’s relatively small courtroom (indeed, smaller than most courtrooms in Jackson County), I sat right behind Jonathan Mitchell (Trump’s lawyer), in a seat “inside the Bar.” As a member of the Supreme Court Bar (for 28 years), I am permitted to sit there for any case heard on any given day by the Court, even if my clients’ cases are not that days’ Court docket. 

 

My reaction, as a 43-year lawyer and as a 29-year member of the Supreme Court Bar, is that the Justices will issue a 9-0 decision in this case to reverse the Colorado Supreme Court. Even Justices Jackson and Kagan and Sotomayor I predict will vote to reverse. I predict that Justice Jackson will write a concurring opinion. This was made possible and perhaps inevitable, in my view, by the DC Circuit Court opinion that was issued on Tuesday in the Jack Smith-prosecuted criminal case against Trump for obstruction of an official proceeding (by Pence to count electoral college votes.) That decision declared that Trump is not immune from criminal prosecution for any and all potential crimes relating to his activities on or before or after January 6, 2021. I predict that the Supremes will deny cert in that DC criminal case against Trump (and thereby decline to review the DC Circuit opinion). This way, the Supremes can punish Trump via the criminal system, and yet do so without kicking him off the ballot in the Colorado case.  

 

My impression is that none of the nine Justices was enamored of the idea of resolving, in this novel and very impactful Colorado Section Three of the 14th Amendment case, the disqualification problem from the perspective of permitting each state to separately address (in potentially 50 different cases) the insurrection disqualification issue. They want a national approach, which only Congress can provide by way of a new statute. Congress has the right to adopt such a statute under Sections Three and Five of the 14th  Amendment, thereby telling all of us what sort of national procedure must be followed in any and all current and future attempts to disqualify a candidate for national office. This is a punt, but not an unreasonable one in my view.

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