Oral argument analysis: Will the Tenth Amendment make a comeback in the faithless electors cases?

A pair of faithless electors cases from 2016 have made their way to the Supreme Court. (Disclosure: I filed an amicus brief on behalf of myself in support of neither party here.) SCOTUSblog posts for Chiafalo v. Washington and Colorado Department of State v. Baca are here and here.

The Tenth Amendment argument unfolded in a curious way because of the Court’s new format of oral argument, where justices asked questions one by one.

The framing here is important before we get to the questions. In 1995, the Supreme Court decided U.S. Term Limits v. Thornton. That case held that states cannot add to the qualifications enumerated in the Constitution for members of Congress, because the Constitution fixes the qualifications and states have no power to add to them.

It was a 5-4 decision (written by Justice Stevens, joined by, among others, Justice Kennedy). Among the arguments rejected by the majority was that the Tenth Amendment empowered states to add qualifications. The majority, relying on the work of Justice Story and others, argued that the states had no reserved powers over federal elections, because there were no federal elections prior to the enactment of the Constitution. Instead, all state power over federal elections must come from an affirmative grant in the Constitution. I think that’s the right argument, as I lay out, in part, in Weaponizing the Ballot.

Justice Thomas dissented on behalf of four justices. He argued that the Tenth Amendment did include such a power. He lost, but still—he had four justices who agreed with him.

Fast forward to today. Justice Thomas asked Professor Larry Lessig, who represented petitioner Chiafalo in the first argument, about a reserved powers of the states claim. Washington did not raise a Tenth Amendment, Professor Lessig notes, but regardless the Constitution empowers electors to have certain discretion, which states cannot take away.

Questions when down the line until it reached Justice Kavanaugh, the most junior justice. He also raised the Tenth Amendment argument with Professor Lessig. Professor Lessig notes that Washington didn’t raise it, and there’s no tradition of state power to control presidential electors.

Now, this is a moment. Justice Kennedy had rejected the Tenth Amendment argument in Thornton. Justice Kavanaugh has replaced him and seemed receptive to the Tenth Amendment.

So, oral argument goes back to the top, to the Solicitor General of Washington. And on down the line until it comes to Justice Sotomayor, who takes the opportunity to push back on the Tenth Amendment claim. In a real-time argument, this would probably have happened when Justice Kavanaugh spoke. But she emphasized, “two of my colleagues” raised it, but Washington never did, and it seems a strange reserved power when states never knew they had it.

Then, on back to Colorado’s oral argument. Colorado did raise a Tenth Amendment claim. Justice Kagan pressed, “Why doesn’t Thornton foreclose that argument?”

So Justices Sotomayor and Kagan, in my view, were very much pushing back against the concerns raised by Justices Thomas and Kavanaugh (and, speaking with more speculation, specifically Justice Kavanaugh) on the Tenth Amendment.

Justice Gorsuch didn’t weigh in on the Tenth Amendment piece, but I want to highlight n.60 of a law review article he wrote in 1991 on term limits, expressly reserving addressing the Tenth Amendment question that would later be address in Thornton. Not that his former views would offer any insight, but, there, he did believe that term limits are a “manner” of holding elections and within state power. It’s unclear whether his views (or reserved views) from that day would carry over here.

A few other highlights from oral argument.

Limiting principles. It’s hard to overstate how many times the justices asked either side about limiting principles—do electors have unfettered discretion? Can states condition electoral appointments however they want? Both sides continued to exert fairly maximalist interpretations, in my view, rather than a claim more closely hewing to the facts presented. That said, it’s in part because the justices are looking for larger principles. But the frustration was palpable. Chief Justice Roberts asked about casting a vote for a giraffe, and Justice Thomas about a vote for Frodo Baggins. Pressing Washington about the limits of its power, claims like “the Equal Protection Clause” and the like were the boundaries. It’s hard to know if either side made much headway here.

Bribery. Professor Lessig made an important—and, I’m not sure entirely necessary—claim during argument, one that multiple justices later seized upon. If an elector was bribed, could that elector be removed? Only after a criminal conviction, Professor Lessig noted. That seemed a bridge too far for many members of the court, who seemed concerned that a bribed elector could still vote if the wheels of justice hadn’t moved swiftly enough.

Manufactured case. The justices at a few points wondered about Baca in particular as a manufactured case. Justice Breyer pressed both sides on the claim that Section 1983 did not allow a state to be sued, so why should a court hear the case? Both sides argued it was non-jurisdictional and how they wanted to strategically present the case. Justice Alito went a step farther, questioning Professor Lessig’s motivations in helping invite chaos in the 2016 presidential election.

Pragmatism. Many justices—particularly Justices Breyer, Alito, and Kavanaugh, but also in strains of Justices Kagan and Gorsuch—echoed practical concerns of two kinds. First, if a judicial decision would render significant uncertainty or unpredictability, perhaps that decision should not be issued—as Justice Kavanaugh put it, the “avoid chaos” theory of judging. Second, in the absence of very clear guidelines from the Constitution, perhaps the courts should just defer to the state judgment, which sometimes binds electors and sometimes doesn’t. Justice Kagan openly floated this possibility, as she seemed unconvinced by either textual or historical arguments, suggesting deference would be warranted.

In the end, there’s plenty of uncertainty in the two cases. And the justices have… six or seven weeks to sort it all out….