Note: Seth Barrett Tillman points out that the second Bayard was actually the son, not the grandson, of the original Bayard. (Bayard’s grandson was also a senator, just not the one in question). The post is corrected accordingly.
Not surprisingly, there have been a lot of amicus briefs filed in the Supreme Court case of Trump v. Anderson, where the former president is seeking review of the Colorado Supreme Court ruling that excluded him from that state’s ballot. For those who do not speak lawyer, “amicus” is short for “amicus curiae” or “friend of the court.” As we know, though, there are different types of friends. Some friends are there for you during difficult times, like when the rain starts to pour and you need an umbrella or when you have to make a history-altering judicial decision and need some wise counsel. Other friends are the type that come to your house drunk at 2 in the morning and throw up on your new sofa.
Very much in the first camp is Professor Derek Muller of Notre Dame Law School, a leading election law expert. Professor Muller has filed an amicus brief that does not take sides or tell the Court who should win. Nor does it claim false certainty or sugar coat the difficulties of the matters before the Court. Instead, the brief provides an important perspective that the Court may not get from the parties, explaining the election law background and identifying some key issues the Court will need to address. Muller also explains why the Court should be precise if it decides to kick the issue to Congress, noting the differences between congressional authority to enact legislation pursuant to section 5 of the 14th amendment, on the one hand, and possible congressional authority to refuse to count electoral votes for a disqualified candidate and/or to determine that a president elect has “failed to qualify” pursuant to the 20th amendment, on the other.
In a future post we may want to explore the issues raised by Professor Muller in some detail. Today, however, we are going to talk about a different kind of amicus brief, one which, unfortunately, is probably more common. This type of brief is not designed to provide the Court with new information or a unique perspective on the issues before it. To the extent it is designed to influence the Court at all, it is only to inform it who supports what outcome. The primary purpose of such briefs, whether submitted on behalf of political figures or interest groups, often appears to be a kind of social signaling to the public or particular constituencies about whose side the amicus is on. It seems very unlikely, for example, that the “Children’s Rights Legal Scholars and Advocates” or “The League for Sportsmen, Law Enforcement and Defense” have anything substantive to contribute to the issues before the Court in Trump v. Anderson.
Which brings us to the amicus brief filed by “Former Attorneys General Edwin Meese III, Michael B. Mukasey and William P. Barr; Law Professors Steven Calabresi and Gary Lawson; Citizens United and Citizens United Foundation” (hereinafter “Amicus Br.”). What this collection of amici have in common is something of a mystery. According to the interest of amici section, “Citizens United and Citizens United Foundation are dedicated to restoring government to the people through a commitment to limited government, federalism, individual liberty, and free enterprise.” Amicus Br. at 2. Exactly what that has to do with the case before the Court is left to the imagination. One can only assume that the interest of these organizations, like that of the children’s and gun rights groups, is of the social signaling variety.
The three former attorneys general, the brief explains, are interested in the case because during their tenures of office “the Department of Justice steadfastly defended the rule of law with respect to the Fourteenth Amendment.” Id. Uhh, ok. Do they file amicus briefs in the Supreme Court whenever a case involves a part of the Constitution they “steadfastly defended” in office? My guess is that they just want the Court to know that they support allowing Trump to stay on the ballot, even though Barr, who served as attorney general under both Trump and George H. W. Bush, has publicly said that Trump is unfit for the presidency.
Finally, we have Professors Calabresi and Lawson, who, the brief notes, “are former Department of Justice officials as well as scholars of the original public meaning of the Constitution.” Id. Their scholarly works have been cited by members of the Court, the brief points out. Interestingly, however, the brief itself doesn’t cite any of their scholarly works, including Calabresi’s prior articles that directly contradict positions taken in the brief. I guess the professors do not have an interest in explaining to the Court why the scholarship of original public meaning scholars is a poor guide to the original public meaning of the Constitution.
A few months ago when we reviewed the changing positions of Professor Calabresi regarding whether the president is an “officer of the United States,” I noted that Calabresi had presumably not changed his prior view that the president holds an “office under the United States” for purposes of both the original Constitution and section 3 of the 14th amendment. Calabresi had previously defended vigorously the view that the presidency is an “office under the United States” and his September 16, 2023 blog post, in which he recanted his prior view that the president was not an “officer of the United States,” did not suggest that he had changed his view on the former issue. Furthermore, Calabresi reiterated in that blog post that Trump should have been impeached, convicted and disqualified for his conduct on January 6, 2021, thereby indicating that he still believed the presidency was an “office under the United States” within the meaning of the Disqualification Clause.
Calabresi’s blog post also indicated that the drafters of section 3 of the 14th amendment intended to cover the president as an “officer of the United States,” but inadvertently used a “legal term of art” with a meaning different than the “colloquial meaning” on which the drafters relied.
Now, however, Calabresi has joined an amicus brief that disavows his former positions on both those issues. The amicus brief contends that the drafters of section 3 deliberately omitted the presidency, rather than simply inadvertently using the wrong language. It also asserts that the phrase “office under the United States” in section 3 does not include the presidency because that phrase “had long been a term of art” which excluded positions, such as the presidency, which “constitute” the government of the United States, but are not “under” it. Moreover, because the drafters of section 3 were familiar with this term of art, the brief maintains, that “there is little doubt” that the usage of this term in 1866 was understood not to include the presidency. Amicus Br. at 11. In endorsing this argument, Calabresi is not only repudiating everything that he said in his 2008 debate with Seth Barrett Tillman (in which, you may recall, he said that the argument he now endorses was an “utterly implausible proposition”), he is out-Tillmanning Tillman because Tillman himself does not argue that the phrase “office under the United States” excludes the presidency as it is used in section 3.
For those keeping score at home, Calabresi has now disavowed (1) his own 1995 law review article in which he said that the president was an officer of the United States; (2) his 2008 debate with Tillman where he reiterated this position and also argued at length that the presidency was clearly an office under the United States within the meaning of the original Constitution; (3) his August 10, 2023 blog post where he declared that Trump was ineligible for the presidency under section 3; and (4) the above mentioned elements of his September 16, 2023 blog post (which otherwise recanted his prior blog post).
So what is the originalist evidence that supports Calabresi’s remarkable evolution? Well, see it all starts with a speech given “during the impeachment trial of U.S. Senator William Blount in 1799 by Senator Bayard, one of Blount’s defenders.” See Amicus Br. at 10.
Wait, you say, “I didn’t know that there was a Senator Bayard who defended Blount during his impeachment trial.” Sure, that’s because you are just a rando who reads blog posts and not a famous legal scholar who gets cited by the Supreme Court. Well, also because there was in fact no Senator Bayard in the Blount impeachment trial. There was (as you know from reading my last post) a Representative Bayard, but he was a House manager who was prosecuting, not defending, Blount.
Pro tip: if you are going to file an amicus brief with the Supreme Court and purport to give it the benefit of your great legal expertise, try not to garble basic facts about the historical record. Otherwise you will end up looking as foolish as a guy who says the name of the wrong woman during his wedding vows.
Now in fact there was a Senator Bayard (actually, there were a number of them, but only one that matters here) who is relevant to the argument the amicus brief is making, but he was not involved in the Blount trial. Senator Bayard, the son of the Bayard who served as a House manager during the Blount impeachment, was the leading opponent of a controversial oath requirement that the Senate sought to impose on its members during the Civil War. And it is the debate over that oath requirement that the amicus brief seeks to use to show that the president was not understood to be an officer of, or hold an office under, the United States. (Maybe this has something to do with why the amicus brief thought there was a Senator Bayard in the Blount trial; it is hard to say.).
The oath at issue stemmed from a statute that Congress passed in 1862 which required that federal officeholders swear not only to prospectively support and defend the Constitution, but that retrospectively they had not borne arms against the United States or engaged in other seditious activities. The Senate subsequently began to insist that its own members take this oath before being seated. This might seem to be a relatively trivial matter, but it was thought to implicate deep questions of constitutional principle and to raise squarely the issue of whether and on what conditions the southern states would be allowed to rejoin the union. After all, if senators were required to take the retrospective oath, then no one previously involved with the Confederacy would be able to represent a state that rejoined the union. The oath requirement therefore addressed the same type of issue that would eventually be settled by section 3 of the 14th amendment.
Senator Bayard opposed the retrospective oath requirement for a number of reasons, but one of them was that he contended that the statutory requirement did not apply to senators at all. The 1862 statute specified:
That hereafter every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation . . . .
Cong. Globe, 38th Cong., 1st sess., appendix 32 (1864) (emphasis added).
Before explaining Senator Bayard’s reasoning, it should be noted that this statute itself provides some relevant information about how the Civil War Congress understood the phrase “office of honor or profit under the Government of the United States.” First, it indicates that such offices could be filled by either election or appointment. Second, it suggests that the presidency constitutes one such office since otherwise there would have been no need to exempt it. Third, it shows that Congress knew how to exclude the president from a legal requirement applying to “any office . . . under . . . the United States” when it wanted to. Each of these points tends to support the conclusion that section 3 applies to the presidency.
Senator Bayard, however, argued that United States senators (and representatives) did not hold offices covered by the statute for the simple reason that they did not hold offices at all. Id. at 36 (“[W]hat is the position of a Senator? My answer is, a station, a trust, not an office within the meaning of the Constitution.”). He contrasted these legislative positions with those of the president and vice president, who hold offices under the “plain and explicit” language of the Constitution. Id.
Senator Bayard buttressed his position by pointing to the Senate’s verdict in the Blount case, which he explained had found that a senator was not a civil officer of the United States and therefore in his view equally supported the conclusion that a senator (or representative) did not hold an office under the United States. Id. at 35. This resulted in retorts from his colleagues who pointed out that Bayard’s father had taken the opposite position in the Blount case.
Although this response would seem to be more like senatorial trash talking than a serious legal argument, another senator, like Bayard an opponent of the oath requirement, took it upon himself to show that the elder Bayard had been more consistent with his son’s views than the opposition allowed. That senator was Reverdy Johnson, whom we have previously discussed in connection with section 3. In the course of an address opposing the oath requirement, Senator Johnson quoted from Representative Bayard’s speech in the Blount trial. See Cong. Globe, 38th Cong., 1st sess. 329 (1864). You may recall the speech in question, in which Representative Bayard with evident embarrassment laid out the argument that a senator or representative might not hold an office under the United States even though he was an officer of the United States. The elder Bayard suggested in passing, as did Senator Johnson by quoting him, that the president likewise might not hold an office under the United States. It is Senator Johnson’s quoting of Representative Bayard’s speech that the amicus brief seizes upon (while omitting all of the background regarding the oath issue which we have just laid out) to show “there is little doubt that the phrase ‘officer *** under the United States’ was understood in 1866 not to include the office of President.” Amicus Br. at 11 (emphasis in original).
If this is the best argument you can come up with, it isn’t your day, week, month, or even your year. (O.k., I know I’m pushing it now). But seriously, Senator Johnson was one senator on the losing side of a debate about whether senators held offices under the United States. Even assuming Johnson thought his (losing) argument applied to the president as well, this view was not even shared by all the senators on his side, like Bayard, and it was obviously rejected by the senators in the overwhelming majority (the resolution to require the retrospective oath passed 28-11). And that is before we get to the fact that Senator Johnson himself later acknowledged that the president was covered by the language in section 3.
In short, the only reasonable inference from the oath debate is that it reinforces the conclusion that the president was understood to hold an office under the United States and, if the framers of section 3 had intended anything else, they would have exempted the presidency just as was done in connection with the 1862 oath statute. There is no plausible way that it can support the interpretation offered by these amici. They are not friends of the Court, at least not the kind that don’t throw up on your sofa.