Interviews have been lightly edited for clarity.
Amar was kind enough to inform me that his course on Constitutional Law will include a special guest lecture by Jonathan Mitchell this Wednesday, open to all Yale students, as space allows.
Last Thursday, the Supreme Court heard oral arguments for Trump v. Anderson, a case determining Colorado’s right to reject Trump’s presidential eligibility on the basis of the Fourteenth Amendment, Section 3. Nearly 80 amicus briefs were submitted to the Court, one of which was penned by Yale Sterling Professor of Law and Political Science Akhil Reed Amar. The case’s expedition gave amici curiae less than a month to file their briefs—indeed, Amar’s was drafted in only two and a half days. The brief argues in favor of Colorado’s right to remove Trump from its ballots, highlighting originalist arguments which draw from Amar’s scholarship on constitutional history. Should they be embraced by the Supreme Court, Amar’s ideas could profoundly illuminate our nation’s understanding of states’ roles in presidential elections. I asked him about his role as an amicus curiae and how he approaches that role as a constitutional scholar.
Tell us a little bit about your amicus brief for Trump v. Anderson and why you chose to file it.
[AA] So, it’s a brief filed by me and my brother, professor and [former University of Illinois College of Law] dean Vik Amar, and what we were trying to do is be true friends of the Court by offering our expertise and analysis in ways that we thought might be helpful.
This is the third brief that we’ve filed in recent years. We, in particular, try to intervene in cases where originalism might be particularly important, where a case is going to be—or should be—decided on the basis of the constitution’s text and history and structure, as distinct, say, from the precedents. Originalism is very hard to do because you need to know a lot of the history. It’s not something that every justice would know automatically because the justices aren’t historians; they’re not full-time scholars. So if the case is just about precedents, well, then, they may not need so much help. But if a case might turn on a constitutional provision that hasn’t been litigated very much and that has an important historical backdrop, that’s a case in which perhaps we might have some expertise to contribute […] Many of the justices say that they want to take originalism seriously, that they want to be principled, and that they don’t want to be junior varsity politicians. So we’re taking them at their word, and we’re saying if so, every so often, we will try to intervene when we think we have something helpful to say as true friends of the Court.
[RZ] What’s your process like for writing these briefs?
[AA] Well, this one was hard to do because we had very little time because it was on an expedited schedule. It turns out, perhaps coincidentally, that I had researched many of the issues in the case already, in connection with some of my scholarship, and that my brother had also researched some of these issues, so the brief got written in two and a half days. And then our team of amazing student assistants finished it off and filled it out, but the first draft was a two and a half day project.
[RZ] One of the most important originalist arguments you mentioned in your brief was that of the “First Insurrection.” Can you describe that event and its relevance?
[AA] [One] big part of our brief explained that even if what Donald Trump did wasn’t like the Civil War itself, it was a lot like what happened before Abraham Lincoln’s inauguration, when all sorts of oath-breaking insurrectionists tried to thwart the lawful transfer of power to a duly elected president-elect. And some of them even tried to interfere with Congress’s certification of that president-elect on the equivalent of January 6th, in 1861, which back then was February 13th.
[RZ] You also discussed some refutations to Jonathan Mitchell’s arguments for the Trump side. Can you tell us about some of them?
[AA] Mitchell says that there’s this case decided by the Chief Justice of the Supreme Court called Griffin’s case […], and it says states can’t enforce the 14th Amendment without Congress’s approval. Congress has to act first. And Mitchell says that even if that’s wrong, Congress eventually acts on the basis of Griffin’s case and, in effect, embraces it. And I say zero plus zero cannot equal three. So yes, Griffin’s case was wrong, and the person who thought it was wrong was the sitting president of the United States—Ulysses Grant, who was acting completely contrary to Griffin’s case—and was enforcing the 14th Amendment’s Section 3 without a Congressional statute. Grant’s actions, not Griffin’s case, were the backdrop of what Congress did. And what Congress did was pass a law that Grant signed into law. There is no evidence whatsoever that that law blessed Griffin’s case and, in effect, condemned what Grant had done […]
So, Jonathan Mitchell takes a case that was wrongly decided, and a Congressional statute that doesn’t say remotely what he says it does, and adds everything together, and adds some magic pixie dust and somehow comes up with the idea that states can’t properly enforce the Constitution, which is a pretty astonishing proposition. They’re not the only ones, but of course they can enforce it… And Jonathan Mitchell doesn’t know any of that—I suspect he doesn’t because he’s not a historian or a scholar—or if he does, didn’t tell the Court any of that, and why should he? That was up to the other side to argue, and their lawyer didn’t do the job.
[RZ] Judging from the oral argument on Thursday, it seems that both the justices and advocates failed to consider many of the most salient points of your brief. What do you think is the cause of that oversight?
[AA] Yeah, they didn’t play a particularly large role. Remember, also, that this is being heard on an expedited basis. It’s a two-minute offense. It’s hurried, and so it’s not shocking that the justices might not have been able to take a look at all the amicus briefs—there were, I think, 78 that were filed in the case. But it’s at least possible that when they’re actually writing their opinions, they’ll have more time to carefully consider not just what the parties have filed with them, but some of the amicus briefs from academic friends of the court. And not just our brief, but other briefs, including one co-authored by my law school colleague John Witt, there’s another one co-signed by another law school colleague Bruce Ackerman, so there are a series of scholarly amicus briefs in the case that didn’t get much attention at the oral argument but could become important later on. We’ll just have to see.
[RZ] As you mentioned, many more people are writing briefs now than ever before. Do you think that changes the future of amicus briefs?
[AA] So, the justices, realistically, are going to pay attention more to some amicus briefs than others. One would expect they’re going to pay more attention to persons or institutions that they know about, maybe whose work they’ve found helpful in past cases. I was emboldened to write these amicus briefs because the Court has, in past cases, repeatedly cited my work and therefore sent a signal that they may be interested in my academic views.
[RZ] Are many amicus briefs like yours, from scholars who highlight a very originalist, historical point of view?
[AA] No. We’re seeing more originalist briefs than, say, a decade ago, but if this decision ignores or rejects good originalist briefs—and if that’s true of almost all the other decisions over the next few years—then at a certain point you might see some of these originalist briefs dry up, because people will get the impression that the Court isn’t so interested in this. So, it matters a lot not just what the Court decides but on what basis.
[RZ] Do you think the justices would think differently than they seem to do now if they had a chance to read your brief?
[AA] That’s what every brief writer hopes! Ultimately, the brief is publicly available—it may have influence on our fellow citizens, but it’s written in the moment to be helpful to nine justices and so that’s the immediately goal—one hopes, and it doesn’t always happen that the brief gets read; that’s not automatic for amicus briefs, because there are so many of them. One hopes the brief gets read, and then one hopes it may influence at least one justice. And sometimes, it may influence a justice but there won’t be any definitive evidence of that—the brief might not be cited even though it might be influential, so, sometimes you don’t know. If a brief is cited by a justice, and that happens from time to time, then at least that’s some evidence that the brief was perhaps influential in some way. And again, we would have to wait to see what the actual written opinion or opinions look like.
