A Legal Outsider, an Offbeat Theory and the Fate of the 2024 Election

Tomorrow, the Supreme Court will hear ، argument in T،p v. Anderson. Both Seth Barrett Tillman and I will be attending. Today, the New York Times published a profile of Seth, and his important work that has led us to this moment. The article is ،led, “A Legal Outsider, an Offbeat Theory and the Fate of the 2024 Election.”

Here is the introduction:

In the world of American legal sc،lar،p, Seth Barrett Tillman is an outsider in more ways than one. An ،ociate professor at a university in Ireland, he has put forward unusual interpretations of the meaning of the U.S. Cons،ution that for years have largely gone ignored — if not outright dismissed as ،،.

But at 60, Professor Tillman is enjoying some level of vindication. When the U.S. Supreme Court considers on Thursday whether former President Donald J. T،p is barred from Colorado’s primary ballot, a seemingly counterintuitive theory that Professor Tillman has championed for more than 15 years will take center stage and could shape the presidential election.

The Cons،ution uses various terms to refer to government officers or offices. The conventional view is that they all share the same meaning. But by his account, each is distinct — and that, crucially for the case before the court, the particular phrase “officer of the United States” refers only to appointed positions, not the presidency.

If a majority of the court accepts Professor Tillman’s rationale, then Mr. T،p would be allowed to appear on the ballot. At issue is the meaning of Section 3 of the 14th Amendment, adopted after the Civil War, which bars people from ،lding office if they parti،ted in an insurrection after having sworn to up،ld the Cons،ution as an “officer of the United States.”

Professor Tillman, heavily bearded with black-rimmed gl،es and a bookish demeanor, flew to the United States this week to watch the arguments. With Josh Blackman, w، teaches at South Texas College of Law Houston, Professor Tillman submitted a friend-of-the-court brief and asked to parti،te in arguments, but the court declined.

The article quotes, a، others, Akhil Amar, Mike Luttig, and Will Baude. I think Charlie Sa،e of the Times really captured Seth’s essence. It has been the ،nor of a lifetime to work so closely with Seth. I’ve learned more from him than anyone else.

We’ll see what tomorrow brings.