Critical legal studies: cancelled, but not wrong
By 
Jonathan Mitchell — the guy behind the Texas statute that got Roe v. Wade overruled in an unreasoned opinion issued at midnight — was notably inept representing Trump at oral argument today. And it doesn’t matter at all, because the Court is going to overrule the Colorado Supreme Court, and probably either 8-1 or 9-0:
The Supreme Court seemed poised on Thursday to issue a lopsided decision rejecting a challenge to former President Donald J. Trump’s eligibility to hold office again.
Justices across the ideological spectrum expressed skepticism about several aspects of a ruling from the Colorado Supreme Court that Mr. Trump’s conduct in trying to subvert the 2020 race made him ineligible to hold office under a constitutional provision that bars people who have sworn to support the Constitution and then engaged in insurrection.
There was very little discussion of the Jan. 6 assault on the Capitol or of Mr. Trump’s role in it. But a majority of the justices indicated that individual states may not disqualify candidates in a national election unless Congress first enacts legislation.
Chief Justice John G. Roberts Jr. asked a series of questions reflecting what seemed to be an emerging consensus: that the 14th Amendment was not meant to permit states to determine whether a candidate was an ineligible insurrectionist.
“The whole point of the 14th Amendment was to restrict state power, right?” he asked, adding that the challengers’ contrary argument was “a position that is at war with the whole thrust of the 14th Amendment.”
Chief Justice Roberts noted that the challengers’ position would have empowered the former Confederate states to determine whether candidates were disqualified from holding federal office. The 14th Amendment was adopted to constrain states’ rights and empower the federal government, the chief justice said, and it is “the last place you’d look for authorization for the states, including Confederate states, to enforce the presidential election process.”
You may notice some tension between John Roberts’s expressed belief today in strong federal limitations on state power in the context of federal elections and…the history of John Roberts on election law on and off the Court passim, but ultimately it doesn’t matter. The rejection of the authority of states to disqualify Trump will form the basis of the Court’s opinion.
In theory, rejecting a state court or public official’s ability to enforce Section 3 of the 14th Amendment absent authorizing federal legislation could leave open the possibility of a federal challenge. In practice, that’s not going to go anywhere either, and if Trump’s legal representatives can’t come up with a decent reason for why Trump is eligible the Court will simply have to invent one on its own again.