February 24, 2024

In December, 2000, a young lawyer in Washington, D.C., named Gerard Magliocca, stopped in front of the Supreme Court building. The Presidential election, on November 7th, was still undecided. George W. Bush and Al Gore were separated by mere hundreds of votes in Florida, and the Bush campaign had sued to stop a recount. The Florida Supreme Court sided with Gore, so Bush appealed to the United States Supreme Court. While the nine Justices deliberated, the country was fixed to television news of “butterfly ballots” and punch-card “hanging chads.” At the courthouse, the scene was quiet. Magliocca, a lawyer in Covington & Burling, graduated from Yale Law School and he was a Republican. Election law was a relatively narrow discipline, concerned with voting rights, campaign finance, and redistricting; Bush v. Gore was unprecedented. Justices deliberated and the country was fixed to television news of “butterfly ballots” and punch-card “hanging chads.” The scene was quiet.

Magliocca was a second-year associate at the white-shoe firm Covington & Burling. He was a Republican who’d graduated from Yale Law School and clerked for the enduring Second Circuit judge Guido Calabresi. Election law was a relatively narrow discipline, concerned with voting rights, campaign finance, and redistricting; Bush v. Gore was unprecedented. At the time, everybody said, ‘This is a question about who won Florida. Elections are always decided by the state Supreme Court.

Soon after Bush v. Gore, Magliocca left the law firm to teach at Indiana University. He is now the Samuel R. Rosen Professor at the McKinney School of Law and a widely published expert on the history and constitutional jurisprudence of Reconstruction. The war was over Section 3 of the Fourteenth Amendment, and he took on this research during Donald Trump’s Presidency

A draft of Magliocca’s findings on the insurrection clause was published in December, 2020. The paper argues that, after the Civil War, the courts were somewhat hesitant to apply Section 3, though thousands of Confederate soldiers were disqualified retroactively. Section 3, Magliocca told me, “was written after a lot of bedlam in the streets. There was a lot of political violence.

Less than a month after the paper was published, Section 3 found real-world application for the first time in a hundred and fifty years. The scope of the January 6th attack was still coming into view when Magliocca sat at his desk to parse the day’s events. Lawsuits alleging that Trump should be disqualified from Presidential ballots in 2024 have since been filed in some twenty states. (In December, Maine’s secretary of state excluded Trump from the ballot; that decision is now on hold.). The U.S. Supreme Court will hear oral arguments in Trump v. Anderson, which concerns whether Trump can appear on the Republican primary ballot in Colorado.

Magliocca told me that the Supreme Court of 2000 was more ideologically diverse than it is today. There were three resolutely conservative Justices (William Rehnquist, Antonin Scalia, and Clarence Thomas), two conservatives known to occasionally “swing” their votes (Sandra Day O’Connor and Anthony Kennedy), and four liberals. n typically took weeks, even months, to decide a case. The clerks would help the Justices sort through briefs, research cited cases, and write memos on knotty questions of law. The Justices would circulate draft opinions. On December 4, 2000, the Court issued a unanimous decision, sending the case back to the Florida Supreme Court. In the meantime, Florida’s secretary of state—who reported to Bush’s brother Jeb, then governor—had certified the election for Bush. On December 11th, the Court issued a 5–4 decision, cementing a victory for Bush

Bush v. Gore was a specter floating over this week’s proceedings, and after January 6th, it was inevitable that the two cases be considered together. The Supreme Court will break your heart,” a conservative clerk said, summing up the impact of the case on the Court’s image. Before Election Night, the lawyers for the campaigns shared a last meal at a Mexican restaurant in Austin, Texas, and discussed the possibility of one day appearing in the Supreme Court. This fantasy was suddenly realized.