1) The Court does not care if it looks silly. It doesn't care about much of anything the people think.
2) Since Roberts' ascension to Chief Justice, every single ruling from the Court has been to either further the short term electoral prospects of the GOP (too bad Dobbs blew up in their faces) and/or to improve the long term economic prospects of the .000001%. Given that, is the GOP better off in November with or without Trump? Is the .000001% better off with Trump on the ticket, or Trump on his way to prison? Answer those two questions and you can predict how they rule.
In legal circles we keep reading/hearing that Roberts is above all an institutionalist with the implied meaning that he wants to preserve the history of the Supreme Court as a moral, impartial body that is above the political fray. IMO if he can do that despite the morally outrageous actions of Thomas, Alito and Kavanaugh (with the lies he told in the appointment process) he’ll either be seen as a magician or a legal genius. If he can’t pull off that feat, he’ll join the ranks of the three above-mentioned justices as morally bankrupt and our country would be one huge step closer to clearing the way for an autocratic candidate as well as adding fuel to the current GOP House of Representatives in their quest to dismantle the architecture of the “administrative state.”
Given the fact that as of now, Trump isn't even charged with seditious conspiracy, I think he will not have a problem.
Jack Smith is no faint-hearted man, and he thinks the case for violent, forceful insurrection is not there for Trump himself, at least as of August, '23.. (Enrique Tarrio isn't running for office...)
Mark Meadows ' cooperation deal is only a month and a half old. I'm hoping for new charges for Stone, Alexander, Flynn, Jones, Eastman, and Ginni Thomas); and for amended charges for Trump.
Interesting comment, Margaret. I remember sometime back, reading about John Roberts and his concern about “How the ‘Roberts Court’ will be remembered.” Up to now, I’m putting it on par with the Taney court for its reputation. He may (just may) somewhat (only) redeem its reputation if making a ruling based on the text of Amendment 14, Section 3 regarding insurrection is given.
If the astonishingly productive, democratic character and formulations of government provided by the Constitution are insufficient to reasoned, evidence-based governance in this matter before the US Supreme Court justices, individually and as a group explicitly defined and purposed by the Constitution, then it will be our determined and reasoned application of the Constitution that will matter and that will provide the State by State disqualification.
There is no legal basis for the Supreme Court to overturn Colorado. None. And so if they do overturn it, it would be the most nakedly political and ethically bankrupt decision in its history. And, as Prof. Snyder says, laughable.
I’m hopeful that because the strongest legal briefs supporting the ban on Trump were written by two fellow members of the Federalist Society--one of whom clerked for John Roberts--that will carry a lot of weight with the conservatives. If they ever want to be taken seriously by their peers in the legal profession again, they should listen to what both conservative and liberal scholars alike are saying about Section 3.
This is a case where the justices own self-interest lines up with the right legal decision. And for traditional conservatives like Roberts, it represents an opportunity both to save their party from Trump and also save the Republic for history. Do they have the courage? Enough of them just might.
Awful decision, and 3 of the 9 current justices were on Bush's legal team: Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. Both cases involve(d) a state Supreme Court ruling. It is at once interesting and appalling that the ruling was expressly not to be used as a precedent. It would have been a terrible precedent, true, but *the law made an exception in just that one case.* In other words, the very fact that the majority ruled that the decision shouldn't set a precedent means they knew that making an exception--just this one time!--was a bad decision. But making an exception to the law destroys the rule of law.
We should note, though, that all 3 of them rejected the Independent State Legislature Theory, the very argument used in Bush v. Gore, in Moore v. Harper (https://www.oyez.org/cases/2022/21-1271). I assume they were trying to be consistent with the earlier non-precedent-setting ruling.
It would be most inconsistent if Justice Gorsuch were to rule against a plain-text reading of 14/3 because he prides himself in being a textualist. Based on a plain text reading of Title IX, Gorsuch wrote in the majority opinion in Bostock v. Clayton County, Georgia, "The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids" (https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf). In not just voting against Clayton County, but in writing the opinion himself, Gorsuch made a lot of right wingers in the country angry, meaning he wasn't afraid to rule in favor of the plain text. So if we could get Gorsuch and Roberts, that's all we'd need. Five is the number we're looking for.
Wow - very detailed insight. Thank you. I cannot see it - these people are so compromised already, they do not care. I will be the first to rejoice if Gorsuch would stop the ogre in his track.
Bush v Gore, abridged version: Count votes, good, re-count votes in accordance with Florida law, bad--violates GW Bush's right to equal protection of the laws.
Gorsuch also wrote the Hassan decision that the Colorado Supreme Court relied on in Anderson v Griswold, and which the majority opinion went to great pains to point out that it was Gorsuch who wrote it when he was on the 10th Circuit Court of Appeals. Gorsuch, Kavanaugh and Barrett are totally boxed in by the majority opinion in Anderson v Griswold. They have no wiggle room and I’m “almost” certain they will join the three women in voting to affirm that Section 3 bars Trump from any future elected office, including the presidency. Nothing is 100%, and that’s why these wishy washy editorials like what appeared yesterday in the WSJ (about the USSC must “rescue” the ballot) worry me. George Conway did write a different piece in The Atlantic, ridiculing Trump’s Petition for Certiorari, but I found it a little too snarky and not serious enough to make a meaningful impact where you need one.
I forgot about that! Very good point. As we've discussed previously, opinions in the WSJ are of such low quality, pandering as they do to to a rabble that has not even the most basic understanding of how our judicial system works, that one can not take them seriously. Well thanks for reminding me. That kind of (?) gives me hope (gulp). I think oral args are on Feb. 9. BTW, rather than listening to them live I usually wait until the transcripts are brought out, *then* I listen to the recording and follow along, as it is otherwise sometimes hard for me to tell who's speaking, which spoils it for me.
Take care Ann, and thanks again for your helpful reminder.
Rose, I think oral argument is set for Feb 8th. And btw, since I’ve never done it before, where do you go to listen to the oral arguments? And where is the transcript posted? On the USSC website?
OK, thanks. Let me look that up tomorrow morning, as it is getting rather late here. I think it is on the USSC website, but I'll check and get back to you after I drag myself out of bed tomorrow morning.
On the one hand, I don't trust them, either. On the other, I don't see how Gorsuch could not rule against Trump, being the textualist that he is. And if we could just get Roberts to rule against Trump, that's all we'd need. I was pleasantly surprised about yesterday's ruling against the state of Texas re razor wire. Both Roberts and Barrett voted with the 3 liberals on the court.
I tend not to be an optimist, so that's not why I think there's a possibility that Gorsuch and Roberts might rule against Trump. Rather, it is the precedent that would be set. The oral args on Feb. 8 ought to give us a hint.
Gorsuch voted to allow Gov Abbott to defy Federal Authority over the border. How clear is the Constitution on this? Tim Synder’s current essay on the unserious nature of the court is sobering
Yes, I know that Gorsuch voted for Gov. Abbot. But because I'm not familiar with that case, I can't say anything about its details. The question before the court was, "Whether the Supreme Court should block an order by the U.S. Court of Appeals for the 5th Circuit that generally bars federal Border Patrol agents from cutting or moving razor wire installed by Texas along a portion of the U.S.-Mexico border (https://www.scotusblog.com/case-files/cases/department-of-homeland-security-v-texas/)." I'm not familiar with the history of this case, nor which cases the justices looked at to make their decisions.
Anderson is different in that its basis is 14/3. My question is whether or not Gorsuch will adhere to his judicial philosophy of textualism--a plain reading of the text of 14/3, *as he has done in the past*. And that is precisely Professor Snyder's question.
I am as disgusted with the Roberts court as you are. But if the majority rules in favor of Trump, it will set a precedent for future presidents, including Democratic, and the justices know this. Alito and Thomas will likely rule for Trump, yes. I'm not so sure about the others. This is not a matter of naïveté on my part. We can revisit this after oral args and the decision.
Nick, on 12/23/23, Josh Blackman & Seth Barrett Tillman (hmmm, is there any relationship here btwn the foregoing and Amy Coney Barrett???🤔), two arch-conservative legal professors, published a dense, fun-filled package of snark against Baude & Paulson's publication.
B&P had the audacity to piss on B&T's 2021 article that concluded "the President is not a Section 3 ‘officer of the United States.’”
B&T's paper titled, "Sweeping and Forcing the President into Section 3" provides some leaf of cover for certain arthropodic Justices to crawl under. Their main criticisms of B&P?
- "Section 3 cannot be used as a sword to disqualify Trump, absent federal enforcement legislation. Trump has not been disqualified pursuant to any federal enforcement legislation."
- B&P misread Griffin’s Case, misunderstood Chase, and misconstrued the holding. They write that Chief Justice Salmon P. Chase, in 1869, "stated expressly that Section 3 can only be enforced by Congress through federal legislation" and that "Chase’s opinion was, and remains, reasonably probative evidence of the original public meaning of Section 3, and whether it is or is not self-executing."
- "Griffin’s Case is not in tension" with a version of the Jefferson Davis treason case overseen by Chief Justice Chase that included "a a sentence which suggests that Chase viewed
Section 3 as self-executing."
- "Baude and Paulsen conflate “engaged” in insurrection, a direct and substantive criminal law offense, with giving “aid or comfort” to enemies, which permits liability based on indirect and inchoate wrongs" and claim that the term “engage” does not extend to "inaction—for example, failing to take action with regard to an insurrection or rebellion."
- "Baude and Paulsen disregard substantial evidence about the meaning of the phrase “Officers of the United States” in the Constitution of 1788. And they disregard the fact that the debates they cite from the 1860s in support of their position look back to debates from the early Republic."
I haven't read B&T's 2021 claim that the President who holds "executive Power" in the "Office" of the President is not an "officer" of the United States. But given the fact that Josh Blackman describes himself on his website as "a national thought leader on constitutional law and the United States Supreme Court" we can see this gentlemen is a legend in his own mind.
"The President is not an "officer" of the United State" is a specious argument.
On Inauguration Day, the incoming president puts his right hand on a Bible and literally takes "the oath of office". After doing that, the newly installed President is said to be holding "the highest office in the land".
Speaking of specious arguments, there is the one that certifying an election is not the ordinary business of Congress ( “ordinary” meaning the typical day-to-day agenda) so the mob on Jan. 6 can’t be charged with disturbing it. The amendment refers to “the ordinary course” of judicial proceedings. What does ordinary mean, then? “Ordinary course” may mean normal or predictable course. Which was most definitely interfered with.
The Constitution says, "The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed."
The January 6th rioters sought to prevent this action by the Congress, which the Constitution expressly commands must take place. They did so with the aim of keeping Trump illegally in office. That's the definition of insurrection. In fact, it rises to the level of a rebellion, because however brief it was, their goal was to prevent the peaceful transfer of power, thus destroying the existing constitutional regime and creating an insurrectionary regime in its place. For several hours, they came close.
There were two prongs of the plot that relied on the riot: 1) Prevent the counting of electoral votes; 2) the Kraken: cause a disturbance enough to justify invoking the Insurrection Act.
There has been testimony that Trump had asked for 10,000 DC Guard to protect "his people," yet on the day of, Trumpers on the DoD bent over backwards to prevent a guard response--until #1 had failed. Apparently, they did not think it through.
#2 depended on a lie nearly as big as the Big Lie--that the attackers were in fact antifa. We still hear this.
Nick, you must remember that the Roberts Court will be ruling in the New Gilead, where judgements of fealty will be rewarded with a very cushy lifestyle to which they are aspiring to become accustomed to
Observations about 'peer' appraisals and 'self-interest' alignment are important factors, but we cannot allow these to distort the importance of making clear what the Constitution points to. As you say, "There is no legal basis for the Supreme Court to overturn Colorado".
For some of the Supreme Court members, written statements and decisions point clearly to allowing peer appraisal and self-interest to mask meaning of the Constitution. Is a constriction of perception and reasoned awareness, such as occurred on Jan 06 2021? Both strongly if unreasonably held (thought and felt) views and expectations seem to be at work.
How do we as citizens give common sense but legally sound expression to the need to make a careful, constitutional appraisal of the Colorado decision, which both supports the Constitution and supports and promotes our federal governance system against intentional endangerment while also pointing to the obvious self-interest and peer benefits of so doing?
A few Justices, such as Marshall, Ginsburg, and Douglas, seem to have embraced and consciously benefited from the self-understanding of responsibility and explicit authority under the Constitution and any personal and or professional tension resulting in RE peer and self-interest self perceptions and relationships. How so?
I'll go a step farther. Not only is Clarence Thomas conflicted; he is himself culpable. His wife and former clerk--and current family friend, carried the fake electors scheme forward, a scheme that would necessitate the SCOTUS taking a position that the electors' question was "political." Hence the question of the several states' electors would be thrown to the respective state legislatures. It is inconceivable that they did this without Clarence Thomas' knowledge; and contorted reasoning of this kind has become a Thomas earmark. Lock them up.
The Professors increasing frustrations with the wayward state of our Union and with the ever more blatant audacity of the SCOTUS in doing the political bidding of the billionaire class and their Maga-Minions is palatable. People were put on the Court because they will remain deaf to the law, the constitution, and precedent. What scary times we live in! And I had thought we had experienced the worst in any of the following three: Bush vs. Gore, The Trump Election or January 6th.
Given the notorious rulings on gun control and the Citizens United case, inter alia, I would not anticipate being surprised by anything issued by the SCOTUS. Unfortunately Gödel's Incompleteness Theorem applies in spades to spoken language, so that something that appears to be transparent to the fine readers of this Substack might be completely at odds with the interpretations assigned by others. Indeed, that is why true democracies have constitutional courts in the first place.
It is unfortunately now demonstrable that the process for picking justices for the SCOTUS, which relies on the good will and ethical behavior of both the person who nominates the candidates and those who advise and consent, is deeply flawed. In the devolution of our democracy we have reached the point where neither is a given.
I've coined a new word: "Griftiness" -- what Alito and Thomas indulge in. Watch them shape themselves into the shape of a pretzel in trying to overturn the Colorado Supreme Court decision.
I have heard that often a 'legal' decision involves 'backwards engineering'. You know the outcome you want, so you now fit that into a legal explanation. The justices are smart and well educated. My guess is that they will find a way to fit this square peg (Griswold v Anderson) into their round hole (textualism, originalism). I do not think their decision will spring from those philosophies, but I do think their rationale for that decision will.
Anderson v Griswold is itself grounded in textualism and originalism. It’s based almost entirely on the Baude/Paulsen law review article , which is a primer of Federalist Society originalism philosophy and legal theory. It was tailor made and fitted precisely into the three Trump justices “round hole”. So to make your analogy more accurate, Anderson v Griswold is a round peg fitting into a round hole and targeted directly at Gorsuch, Kavanaugh and Barrett. They would have to abandon every single thing they stand for not to affirm the Colorado Supreme Court. I know many of you have never, and will never, forgive them for the Dobbs decision, but it is that very overturning of Roe v Wade that convinces me they will affirm Anderson v Griswold. I was in law school when Roe was decided. It was a bad decision written by liberal justices who created a right to privacy where there was none and then stuck abortion within its parameters. Roe has been needing overturning ever since it first appeared. Only a USSC dominated by Federalist Society originalists could have the guts to overturn Roe, and they will (imho) stick to their principles and affirm Anderson v Griswold. You have to understand how these justices think to see that the two outcomes are complimentary, not unrelated.
Many of those opposed to upholding the Colorado (and later Maine) ruling do so because they demand that the voters should be deciding this issue, not the courts. This exposes a fundamental question about our Republic. The Founders were justifiably concerned about depending on the 'wisdom' of the voting public (even in the beginning when that group largely included only white, male, property owners). But they essentially crossed their fingers and went ahead and designed a blueprint for just such a system. So now what are we to make of a situation in which a substantial number of voters appear to support a man who, should he regain the Oval Office, would clearly seek to undermine the very principles those same voters claim to believe in? How do we protect our system of government when so many either don't understand how it is supposed to work or simply don't want it to work as it was intended because they have gotten the idea in their heads that it doesn't do for them what they think it ought to be doing? It was just this kind of narrow, parochial thinking that concerned the Founders most. This whole situation is about a fundamental and large scale misunderstanding of what we were designed to be and about those who for their own selfish and often nefarious purposes are driving that misunderstanding. This is not a problem that can be solved in a voting booth. We are indeed at a tipping point unlike any in our history. No matter which way we go, there will likely be trouble, the like of which we haven't yet experienced. We are at war with ourselves through a fundamental weakness in the democratic process, one in which, perhaps, an over-emphasis on individual rights to the cost of the community, and the resultant increasingly divisive beliefs that emphasis helps to generate causes democracies to eat themselves alive from the inside out. It happened in the original one, ancient Athens, and it could easily happen here. I still believe, with the man I believe to have been the greatest American, that our system is 'the last best hope of earth'. But if too many of us simply don't understand what that means, we could, as he also noted as early as 1838, 'die by suicide'.
"Many of those opposed to upholding the Colorado (and later Maine) ruling do so because they demand that the voters should be deciding this issue, not the courts."
the voters do not have the right to make every decision in this Constitutional Democracy. Basic qualifications to hold office is one that the voters do not have the right to decide.
"...an over-emphasis on individual rights to the cost of the community..."
You hit the nail on the head and the entire world, of whatever political leanings, scratches their head at what false liberties we grant the individual, and what liberties we deny the common good.
How about a followup column, about how the court and legal system caved into, and then served, the Nazis, and how very quickly that came about once Hitler took power. People today keep talking about our checks and balances, as if we are safe. Not so, when good people step aside and leave the compliant scumbags to run the country. How quickly Hitler silenced, outlawed, and drove away his critics and opponents is stunning when one looks at the timeline in 1933. Most people today don't (and won't) see how easily that can happen. The Nazis technically had law and order, just of the fascist type.
I so not see how they can get out of this one. A court, the Supreme Court of Colorado, has ruled, based on a hearing by the lower court in which both sides presented arguments and evidence, that Trump is not eligible because he engaged in insurrection. They could probably legitimately get out of it by turning it over to the Congress by agreeing with the lower court but advocating that only the Congress, also because of the text of the 14th amendment, could alter their decision by deciding by a two thirds vote to put Trump onto the ballot.
As a professor, I taught the Constitution for 20 years. Still, not being a constitutional lawyer, I refrain from publicly assessing constitutional issues that are brought before the Supreme Court.
Though Harvard Professor Lawrence Tribe’s assessments are more in line with my political biases, I find Linda Greenhouse’s cool-handed analyses more accurate.
Has Greenhouse publicly commented on this current issue? If so, can you provide a link to same? Personally, I’m convinced by Willam Baude and Michael Stokes Paulsen. Professor Tribe agreed with them in his article for The Atlantic that he co-wrote with J. Michael Luttig.
Ann I don’t recall a Greenhouse article on the 14th Amendment Article 3 issue. She has published recent articles on the politicalization of the Supreme Court in the NYT and, I believe, in the NY Review of Books. You might Google her.
Thanks, I did google her, but found nothing on the current controversy. And I saw a YouTube interview with Tribe where he describes himself as a Constitutional purist who thinks Anderson v Griswold should be affirmed, BUT he said the USSC may decide to be “practical” and overturn it just to avoid the predicted chaos and violence of removing Trump from the ballot. Whatever happened to “without fear or favor”?
Ann The Roberts Court has been called, by a justice, the Stench Court.I consider it the Retrograde Court, whose originalism is taking us back to the 19th century or earlier. Of course then we had John Marshall to make judicial policy when necessary.
Another splendid statement of the realities and the huge stakes at play in the Colorado decision and in whether Thomas recuses or not. Will the Court really allow itself to look as silly and worthy of contempt as it will if it gets this decision wrong, i.e., partisan? Has Roberts no influence/control/shame?
I think we should all hold off on the reflexive prognosticating about what the Court will decide in the Armstrong case, take a deep breath and consider a few factors--------
First and foremost, this or any Court will seek a way to shave down the sharp edges of any decision deemed "political". If they can get away with punting on the case procedurally, they will. I am certain that the majority of the Court, like the majority of the Country, would want to let the voters decide the election, not the Court. I'm not saying that a decision upholding the Colorado Supremes would reflect a desire to have the Court decide the election, far from it. Just pointing out the old reality that the Justices read the papers. Or, in this day and age, read their twitter ("X" marks the racist billionaire spot) feed.
Thus, I think they may boot the case on "ripeness" grounds, i.e., determining that given the number of similar challenges in other states, with various methodologies of dealing with elections, the case is not yet ready for full review.
Second, let's focus on the text of Section 3 of the 14th: therein, the following circumstances demand exclusion from running for office of those who having previously taken an oath to support the Constitution----those who "have engaged in insurrection or rebellion against the same (Constitution & US), or given aid or comfort to the enemies of thereof".
Critical here is the explicit distinction between insurrection and rebellion. In the wake of the Civil War, "rebellion" was obvious. Yet "insurrection", while less obviously self-explanatory, is clearly a lower degree of activity than rebellion. Thus the argument that an "insurrection" must rise to Civil War-esque sustained armed conflict is false.
Third, Section 3 also provides an explicit bypass around the stark prohibition of running for office. If the Congress votes by a 2/3 majority, it may exempt the otherwise disqualified candidate from the disqualification due to insurrection, rebellion, etc.
This provision is not discussed nearly enough. Those who argue that the Colorado court is depriving the People unjustly of a candidate of their choice should read this provision. This is their outlet.
Finally, while the concept of "insurrection" does seem to cry out for clarification, it is important to note that the federal district court in Colorado tried the matter, with Trump's side arguing that he did not commit insurrection. They lost that argument.
Signed, sealed, delivered. The Supremes are deciding the propriety of the Colorado Supreme Court's decision, not any decision from other states. So they are free to affirm the Colorado Supreme Court decision, and in fact they are virtually obligated to do so, absent some finding of lack of discretion in the trial court's factual findings.
I will go out on the proverbial limb here and say we will see one of the following decisions from the Supremes---
Either a procedural punting on "ripeness" or "justiciability", or a 6-3 decision upholding the Colorado Supremes, with Kavanaugh, Barrett and Roberts joining Sotomayor, Kagan and Jackson in the majority.
This is a good post, Daniel! I agree with much of what you say here re: SCOTUS' desire to stay out of politics. They will almost certainly punt on the question whether or not Trump is an insurrectionist, along the lines you outlined.
I disagree with your prediction, though, and predict instead that the court will stay Colorado, based on a procedural argument that (1) 14.3 cannot be decided differently in different states and (2) too many cases are still pending.
In the past few days when not at work, I have reviewed and reviewed again Baude and Paulsen and comments offered herein on their Sweep and Force analysis.
Curious, but perhaps of use... If your observation about the distinction between holding office and being a candidate for office is assumed, then two things logically follow:
the 'sweep and force' in effecting Sec 3 is severely restricted in respect to persons in positions to recognize and enforce the disqualification and in respect to the actual time in minutes, hours, and days within which to do so.
Oh I see what you are reading about sweep and force... the problem is some of us think he is disqualified end of story period.. but others argue not and obviously he's running! So the issue is the SCOTUS interjection in this and what it will mean or whether it will have any force or respect. The SCOTUS would do us a favor if they ruled, barring Thomas, that the Constitution says that Trump is disqualified. Or they can allow each state to give Trump due process... though he's has plenty of due process already. But they've agreed to rule....
Your points are well taken and of immediate need of action, action determined within and with the tools provided by the Constitution and in the American peoples' interest as constitutionally, democratically, self-governing.
In rereading this and other essays by Prof Snyder, along side reviewing Baude and Paulsen, especially sections on terms and definitions in the context of regular usage, I was struck by a sense of logical satisfaction with Baude and Paulsen's analysis, which in turn gave me a sense of the importance of amassing evidence with a thoroughness and impartiality so as to then be able to let the evidence speak for itself. In the case of Trump and Sec 3, his choices and actions make more and more evident his intention and more and more evident his disregard for the Constitution which he made oath to always support.
My point is that Baude and Paulsen provide an analysis which establishes meaning, from which it can be understood what choices and actions come under its authority to make disqualification. It is evidence and meaning that constitute the effecting, the evidence-based logical interpretation on which disqualification must rest. It concerns and individual's choices and actions that carry significant constituting and or supporting influence to events involving others; intentions are reciprocal, intentions and objectives become more and more apparent from the choices and actions which proceed from them. Sec 3 effects disqualification by capturing meaning FROM this larger moment of persons' choices, actions, and consequent subsequent choices and actions in relation to the authority of legal government and the Constitution.
To assert, after the fact (or facts which logically suggest Sec 3 disqualification), that Sec 3 does not thus capture the 'true' intentions and objectives of the choices and actions is to suggest that the choices and actions can and did and do mean something not like 'insurrection' or not like 'rebellion'. That assertion is possible, but it may lack any evidence-based logical satisfaction.
The satisfaction of this sort of evidence-based capture of intention is what is difficult to understand when the logic of the evidence is the source of the satisfaction. So it is imperative to ask for the alternative narrative of intention and objective, and it is imperative to make reasoned efforts to discover alternatives on one's own. However, the logic of the evidence may seem to point to one and only one intention-objective based set of choices and actions; in the case of insurrection or rebellion as understood in Sec 3, effecting disqualification thus may spare an entire nation of people and their values for social governance from being destroyed.
I suggest that Sec 3 is clear in what protections it provides and is effective and not careless in the ways it can effect disqualification. It is not making judgement; it is capturing, from within a very dangerous set of circumstances and events, individual intention and objective directly from individual choices and actions.
Thanks Mr Potter. This is my current best reading and retelling.
I am grateful for your questions, your comments, your observations and assessments.
I have already commented on your last post, Timothy, and pointed out that it is not as simple as you make it sound. Honestly, you sound as if you have receded into a MSNBC bubble!
Yes yes yes, Clarence Thomas is ridiculous. And so is/was George Santos, and so is Robert Menendez. Shamelessness is bipartisan in 2023, and political cowardice (looking at you, Chuck Schumer!) is, as well.
The Colorado decision is a tough one, legally speaking. Most likely, SCOTUS will side with Trump, on legal grounds, for all the reasons I stated in my last post. This is a blow to all of us who want Trump to disappear forever - but it is decidedly NOT a sign of a broken or corrupt court. Rather, any suggestion of this sort helps in further undermining the legitimacy of our institutions which are holding by a thread. Do we want to be progressive bomb throwers? or do we want to save our republic? Maybe it is time to read your 20 theses of ON TYRANNY again...
Pretty easy call - indeed. Just as I predicted. Unanimous decision.
Don't you agree that it is time for some serious self-reflection, both for you and for Timothy? You can go crazy-radical now, and claim that even our 3 liberal judges are corrupt and/or morons as they missed the 'easy call' - or you can try to understand them.
I recall our vigorous debate on this issue from a month ago - you offered a beer, I offered you two. Sounds like our liberal judges agree with me - this may become a unanimous decision. Which is good, of course: unanimity. Except that it is not what you nor Tim Snyder predicted.
As I predicted, this was a fool's errand. It did a lot of damage to our shared goal of defeating Donal Trump. Of never ever seeing him anywhere near the Oval Office, again.
Anyway -the decision is not out, hence premature to say too much. But let's come back to our prior arguments after the verdict: I heard a lot of what I have been saying all along this morning - expressed by Jackson and Kagan...
Couple of things...
1) The Court does not care if it looks silly. It doesn't care about much of anything the people think.
2) Since Roberts' ascension to Chief Justice, every single ruling from the Court has been to either further the short term electoral prospects of the GOP (too bad Dobbs blew up in their faces) and/or to improve the long term economic prospects of the .000001%. Given that, is the GOP better off in November with or without Trump? Is the .000001% better off with Trump on the ticket, or Trump on his way to prison? Answer those two questions and you can predict how they rule.
Maybe. Roberts may be a conservative and a corporatist, but my guess is that he is not a Trumper. He has the ability to refuse to swear Trump in.
In legal circles we keep reading/hearing that Roberts is above all an institutionalist with the implied meaning that he wants to preserve the history of the Supreme Court as a moral, impartial body that is above the political fray. IMO if he can do that despite the morally outrageous actions of Thomas, Alito and Kavanaugh (with the lies he told in the appointment process) he’ll either be seen as a magician or a legal genius. If he can’t pull off that feat, he’ll join the ranks of the three above-mentioned justices as morally bankrupt and our country would be one huge step closer to clearing the way for an autocratic candidate as well as adding fuel to the current GOP House of Representatives in their quest to dismantle the architecture of the “administrative state.”
Too late for Roberts to save his reputation. That ended with the gutting of the Voting Rights Act.
He saved the ACA... .
For the same reason he will vote to overturn the Colorado case. Fear of a very wide popular outcry.
Given the fact that as of now, Trump isn't even charged with seditious conspiracy, I think he will not have a problem.
Jack Smith is no faint-hearted man, and he thinks the case for violent, forceful insurrection is not there for Trump himself, at least as of August, '23.. (Enrique Tarrio isn't running for office...)
Mark Meadows ' cooperation deal is only a month and a half old. I'm hoping for new charges for Stone, Alexander, Flynn, Jones, Eastman, and Ginni Thomas); and for amended charges for Trump.
He voted with the HC industry every time.
Interesting comment, Margaret. I remember sometime back, reading about John Roberts and his concern about “How the ‘Roberts Court’ will be remembered.” Up to now, I’m putting it on par with the Taney court for its reputation. He may (just may) somewhat (only) redeem its reputation if making a ruling based on the text of Amendment 14, Section 3 regarding insurrection is given.
I'm not sure why anyone thinks it's Roberts' job to control other justices. I would say that should fall to the Congress and/or the AG.
Thanks for this.
If the astonishingly productive, democratic character and formulations of government provided by the Constitution are insufficient to reasoned, evidence-based governance in this matter before the US Supreme Court justices, individually and as a group explicitly defined and purposed by the Constitution, then it will be our determined and reasoned application of the Constitution that will matter and that will provide the State by State disqualification.
If Roberts refused to do the swearing in, I'm sure Loose Cannon would be happy to make the trip from Florida.
I think the Chief Justice is specified.
Anyone can swear in a president.
trump should not got to a time when Roberts could refuse to swear him in. No to the ballot.
Tom, the Court Pharisees will not overrule Orange Jesus or their benefactor Leonard Leo; the cost to their personal safety would be too great
There is no legal basis for the Supreme Court to overturn Colorado. None. And so if they do overturn it, it would be the most nakedly political and ethically bankrupt decision in its history. And, as Prof. Snyder says, laughable.
I’m hopeful that because the strongest legal briefs supporting the ban on Trump were written by two fellow members of the Federalist Society--one of whom clerked for John Roberts--that will carry a lot of weight with the conservatives. If they ever want to be taken seriously by their peers in the legal profession again, they should listen to what both conservative and liberal scholars alike are saying about Section 3.
This is a case where the justices own self-interest lines up with the right legal decision. And for traditional conservatives like Roberts, it represents an opportunity both to save their party from Trump and also save the Republic for history. Do they have the courage? Enough of them just might.
I actually think Bush vs. Gore was in my lifetime (1971-now) the most nakedly political and ethically bankrupt decision of the court.
Awful decision, and 3 of the 9 current justices were on Bush's legal team: Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. Both cases involve(d) a state Supreme Court ruling. It is at once interesting and appalling that the ruling was expressly not to be used as a precedent. It would have been a terrible precedent, true, but *the law made an exception in just that one case.* In other words, the very fact that the majority ruled that the decision shouldn't set a precedent means they knew that making an exception--just this one time!--was a bad decision. But making an exception to the law destroys the rule of law.
We should note, though, that all 3 of them rejected the Independent State Legislature Theory, the very argument used in Bush v. Gore, in Moore v. Harper (https://www.oyez.org/cases/2022/21-1271). I assume they were trying to be consistent with the earlier non-precedent-setting ruling.
It would be most inconsistent if Justice Gorsuch were to rule against a plain-text reading of 14/3 because he prides himself in being a textualist. Based on a plain text reading of Title IX, Gorsuch wrote in the majority opinion in Bostock v. Clayton County, Georgia, "The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids" (https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf). In not just voting against Clayton County, but in writing the opinion himself, Gorsuch made a lot of right wingers in the country angry, meaning he wasn't afraid to rule in favor of the plain text. So if we could get Gorsuch and Roberts, that's all we'd need. Five is the number we're looking for.
Wow - very detailed insight. Thank you. I cannot see it - these people are so compromised already, they do not care. I will be the first to rejoice if Gorsuch would stop the ogre in his track.
Bush v Gore, abridged version: Count votes, good, re-count votes in accordance with Florida law, bad--violates GW Bush's right to equal protection of the laws.
Gorsuch also wrote the Hassan decision that the Colorado Supreme Court relied on in Anderson v Griswold, and which the majority opinion went to great pains to point out that it was Gorsuch who wrote it when he was on the 10th Circuit Court of Appeals. Gorsuch, Kavanaugh and Barrett are totally boxed in by the majority opinion in Anderson v Griswold. They have no wiggle room and I’m “almost” certain they will join the three women in voting to affirm that Section 3 bars Trump from any future elected office, including the presidency. Nothing is 100%, and that’s why these wishy washy editorials like what appeared yesterday in the WSJ (about the USSC must “rescue” the ballot) worry me. George Conway did write a different piece in The Atlantic, ridiculing Trump’s Petition for Certiorari, but I found it a little too snarky and not serious enough to make a meaningful impact where you need one.
I forgot about that! Very good point. As we've discussed previously, opinions in the WSJ are of such low quality, pandering as they do to to a rabble that has not even the most basic understanding of how our judicial system works, that one can not take them seriously. Well thanks for reminding me. That kind of (?) gives me hope (gulp). I think oral args are on Feb. 9. BTW, rather than listening to them live I usually wait until the transcripts are brought out, *then* I listen to the recording and follow along, as it is otherwise sometimes hard for me to tell who's speaking, which spoils it for me.
Take care Ann, and thanks again for your helpful reminder.
Rose, I think oral argument is set for Feb 8th. And btw, since I’ve never done it before, where do you go to listen to the oral arguments? And where is the transcript posted? On the USSC website?
OK, thanks. Let me look that up tomorrow morning, as it is getting rather late here. I think it is on the USSC website, but I'll check and get back to you after I drag myself out of bed tomorrow morning.
Rose, they can not about being consistent, they were placed in position to “deliver” and deliver they shall
On the one hand, I don't trust them, either. On the other, I don't see how Gorsuch could not rule against Trump, being the textualist that he is. And if we could just get Roberts to rule against Trump, that's all we'd need. I was pleasantly surprised about yesterday's ruling against the state of Texas re razor wire. Both Roberts and Barrett voted with the 3 liberals on the court.
I tend not to be an optimist, so that's not why I think there's a possibility that Gorsuch and Roberts might rule against Trump. Rather, it is the precedent that would be set. The oral args on Feb. 8 ought to give us a hint.
https://open.substack.com/pub/snyder/p/courting-ridicule-audio?r=34x82&utm_medium=ios&utm_campaign=post
Yes, thank you. I listened to it after I got up this morning and found it in my email. I also read the original post.
Gorsuch voted to allow Gov Abbott to defy Federal Authority over the border. How clear is the Constitution on this? Tim Synder’s current essay on the unserious nature of the court is sobering
Just noticed you're majoring in musicology. I have a master's degree in historical musicology.
Yes, I know that Gorsuch voted for Gov. Abbot. But because I'm not familiar with that case, I can't say anything about its details. The question before the court was, "Whether the Supreme Court should block an order by the U.S. Court of Appeals for the 5th Circuit that generally bars federal Border Patrol agents from cutting or moving razor wire installed by Texas along a portion of the U.S.-Mexico border (https://www.scotusblog.com/case-files/cases/department-of-homeland-security-v-texas/)." I'm not familiar with the history of this case, nor which cases the justices looked at to make their decisions.
Anderson is different in that its basis is 14/3. My question is whether or not Gorsuch will adhere to his judicial philosophy of textualism--a plain reading of the text of 14/3, *as he has done in the past*. And that is precisely Professor Snyder's question.
I am as disgusted with the Roberts court as you are. But if the majority rules in favor of Trump, it will set a precedent for future presidents, including Democratic, and the justices know this. Alito and Thomas will likely rule for Trump, yes. I'm not so sure about the others. This is not a matter of naïveté on my part. We can revisit this after oral args and the decision.
Care not
Yes. Actually more badly reasoned than Dred Scott.
... and save the Republic for the future.
Nick, on 12/23/23, Josh Blackman & Seth Barrett Tillman (hmmm, is there any relationship here btwn the foregoing and Amy Coney Barrett???🤔), two arch-conservative legal professors, published a dense, fun-filled package of snark against Baude & Paulson's publication.
B&P had the audacity to piss on B&T's 2021 article that concluded "the President is not a Section 3 ‘officer of the United States.’”
B&T's paper titled, "Sweeping and Forcing the President into Section 3" provides some leaf of cover for certain arthropodic Justices to crawl under. Their main criticisms of B&P?
- "Section 3 cannot be used as a sword to disqualify Trump, absent federal enforcement legislation. Trump has not been disqualified pursuant to any federal enforcement legislation."
- B&P misread Griffin’s Case, misunderstood Chase, and misconstrued the holding. They write that Chief Justice Salmon P. Chase, in 1869, "stated expressly that Section 3 can only be enforced by Congress through federal legislation" and that "Chase’s opinion was, and remains, reasonably probative evidence of the original public meaning of Section 3, and whether it is or is not self-executing."
- "Griffin’s Case is not in tension" with a version of the Jefferson Davis treason case overseen by Chief Justice Chase that included "a a sentence which suggests that Chase viewed
Section 3 as self-executing."
- "Baude and Paulsen conflate “engaged” in insurrection, a direct and substantive criminal law offense, with giving “aid or comfort” to enemies, which permits liability based on indirect and inchoate wrongs" and claim that the term “engage” does not extend to "inaction—for example, failing to take action with regard to an insurrection or rebellion."
- "Baude and Paulsen disregard substantial evidence about the meaning of the phrase “Officers of the United States” in the Constitution of 1788. And they disregard the fact that the debates they cite from the 1860s in support of their position look back to debates from the early Republic."
I haven't read B&T's 2021 claim that the President who holds "executive Power" in the "Office" of the President is not an "officer" of the United States. But given the fact that Josh Blackman describes himself on his website as "a national thought leader on constitutional law and the United States Supreme Court" we can see this gentlemen is a legend in his own mind.
"The President is not an "officer" of the United State" is a specious argument.
On Inauguration Day, the incoming president puts his right hand on a Bible and literally takes "the oath of office". After doing that, the newly installed President is said to be holding "the highest office in the land".
Speaking of specious arguments, there is the one that certifying an election is not the ordinary business of Congress ( “ordinary” meaning the typical day-to-day agenda) so the mob on Jan. 6 can’t be charged with disturbing it. The amendment refers to “the ordinary course” of judicial proceedings. What does ordinary mean, then? “Ordinary course” may mean normal or predictable course. Which was most definitely interfered with.
The Constitution says, "The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed."
The January 6th rioters sought to prevent this action by the Congress, which the Constitution expressly commands must take place. They did so with the aim of keeping Trump illegally in office. That's the definition of insurrection. In fact, it rises to the level of a rebellion, because however brief it was, their goal was to prevent the peaceful transfer of power, thus destroying the existing constitutional regime and creating an insurrectionary regime in its place. For several hours, they came close.
There were two prongs of the plot that relied on the riot: 1) Prevent the counting of electoral votes; 2) the Kraken: cause a disturbance enough to justify invoking the Insurrection Act.
There has been testimony that Trump had asked for 10,000 DC Guard to protect "his people," yet on the day of, Trumpers on the DoD bent over backwards to prevent a guard response--until #1 had failed. Apparently, they did not think it through.
#2 depended on a lie nearly as big as the Big Lie--that the attackers were in fact antifa. We still hear this.
That’s how I read it.
I've got a bridge to sell you.
Nick, you must remember that the Roberts Court will be ruling in the New Gilead, where judgements of fealty will be rewarded with a very cushy lifestyle to which they are aspiring to become accustomed to
Thanks for these interesting observations.
Observations about 'peer' appraisals and 'self-interest' alignment are important factors, but we cannot allow these to distort the importance of making clear what the Constitution points to. As you say, "There is no legal basis for the Supreme Court to overturn Colorado".
For some of the Supreme Court members, written statements and decisions point clearly to allowing peer appraisal and self-interest to mask meaning of the Constitution. Is a constriction of perception and reasoned awareness, such as occurred on Jan 06 2021? Both strongly if unreasonably held (thought and felt) views and expectations seem to be at work.
How do we as citizens give common sense but legally sound expression to the need to make a careful, constitutional appraisal of the Colorado decision, which both supports the Constitution and supports and promotes our federal governance system against intentional endangerment while also pointing to the obvious self-interest and peer benefits of so doing?
A few Justices, such as Marshall, Ginsburg, and Douglas, seem to have embraced and consciously benefited from the self-understanding of responsibility and explicit authority under the Constitution and any personal and or professional tension resulting in RE peer and self-interest self perceptions and relationships. How so?
I'll go a step farther. Not only is Clarence Thomas conflicted; he is himself culpable. His wife and former clerk--and current family friend, carried the fake electors scheme forward, a scheme that would necessitate the SCOTUS taking a position that the electors' question was "political." Hence the question of the several states' electors would be thrown to the respective state legislatures. It is inconceivable that they did this without Clarence Thomas' knowledge; and contorted reasoning of this kind has become a Thomas earmark. Lock them up.
The Professors increasing frustrations with the wayward state of our Union and with the ever more blatant audacity of the SCOTUS in doing the political bidding of the billionaire class and their Maga-Minions is palatable. People were put on the Court because they will remain deaf to the law, the constitution, and precedent. What scary times we live in! And I had thought we had experienced the worst in any of the following three: Bush vs. Gore, The Trump Election or January 6th.
Meanwhile, J6 ‘QAnon Shaman’ wants his horns back from the FBI. 😅 #Lock’emUp
Ginni Thomas was/is QAnon herself, to her eyeballs.
I know this is presumptuous but I would offer the historical name for the decision, “the Petard Ruling.”
Given the notorious rulings on gun control and the Citizens United case, inter alia, I would not anticipate being surprised by anything issued by the SCOTUS. Unfortunately Gödel's Incompleteness Theorem applies in spades to spoken language, so that something that appears to be transparent to the fine readers of this Substack might be completely at odds with the interpretations assigned by others. Indeed, that is why true democracies have constitutional courts in the first place.
It is unfortunately now demonstrable that the process for picking justices for the SCOTUS, which relies on the good will and ethical behavior of both the person who nominates the candidates and those who advise and consent, is deeply flawed. In the devolution of our democracy we have reached the point where neither is a given.
I've coined a new word: "Griftiness" -- what Alito and Thomas indulge in. Watch them shape themselves into the shape of a pretzel in trying to overturn the Colorado Supreme Court decision.
Very good! I like that. It reminds me of Stephen Colbert's "truthiness."
I have heard that often a 'legal' decision involves 'backwards engineering'. You know the outcome you want, so you now fit that into a legal explanation. The justices are smart and well educated. My guess is that they will find a way to fit this square peg (Griswold v Anderson) into their round hole (textualism, originalism). I do not think their decision will spring from those philosophies, but I do think their rationale for that decision will.
Anderson v Griswold is itself grounded in textualism and originalism. It’s based almost entirely on the Baude/Paulsen law review article , which is a primer of Federalist Society originalism philosophy and legal theory. It was tailor made and fitted precisely into the three Trump justices “round hole”. So to make your analogy more accurate, Anderson v Griswold is a round peg fitting into a round hole and targeted directly at Gorsuch, Kavanaugh and Barrett. They would have to abandon every single thing they stand for not to affirm the Colorado Supreme Court. I know many of you have never, and will never, forgive them for the Dobbs decision, but it is that very overturning of Roe v Wade that convinces me they will affirm Anderson v Griswold. I was in law school when Roe was decided. It was a bad decision written by liberal justices who created a right to privacy where there was none and then stuck abortion within its parameters. Roe has been needing overturning ever since it first appeared. Only a USSC dominated by Federalist Society originalists could have the guts to overturn Roe, and they will (imho) stick to their principles and affirm Anderson v Griswold. You have to understand how these justices think to see that the two outcomes are complimentary, not unrelated.
They will choose inconsistency.
Many of those opposed to upholding the Colorado (and later Maine) ruling do so because they demand that the voters should be deciding this issue, not the courts. This exposes a fundamental question about our Republic. The Founders were justifiably concerned about depending on the 'wisdom' of the voting public (even in the beginning when that group largely included only white, male, property owners). But they essentially crossed their fingers and went ahead and designed a blueprint for just such a system. So now what are we to make of a situation in which a substantial number of voters appear to support a man who, should he regain the Oval Office, would clearly seek to undermine the very principles those same voters claim to believe in? How do we protect our system of government when so many either don't understand how it is supposed to work or simply don't want it to work as it was intended because they have gotten the idea in their heads that it doesn't do for them what they think it ought to be doing? It was just this kind of narrow, parochial thinking that concerned the Founders most. This whole situation is about a fundamental and large scale misunderstanding of what we were designed to be and about those who for their own selfish and often nefarious purposes are driving that misunderstanding. This is not a problem that can be solved in a voting booth. We are indeed at a tipping point unlike any in our history. No matter which way we go, there will likely be trouble, the like of which we haven't yet experienced. We are at war with ourselves through a fundamental weakness in the democratic process, one in which, perhaps, an over-emphasis on individual rights to the cost of the community, and the resultant increasingly divisive beliefs that emphasis helps to generate causes democracies to eat themselves alive from the inside out. It happened in the original one, ancient Athens, and it could easily happen here. I still believe, with the man I believe to have been the greatest American, that our system is 'the last best hope of earth'. But if too many of us simply don't understand what that means, we could, as he also noted as early as 1838, 'die by suicide'.
"Many of those opposed to upholding the Colorado (and later Maine) ruling do so because they demand that the voters should be deciding this issue, not the courts."
the voters do not have the right to make every decision in this Constitutional Democracy. Basic qualifications to hold office is one that the voters do not have the right to decide.
As someone else noted, millions want to vote for Obama or for Taylor Swift. It’s those disqualifications again.
Yes, but Swift will outgrow the restriction. Very soon, in fact.
I look forward to 2028, when we can have the election of the century: Taylor Swift vs AOC.
"...an over-emphasis on individual rights to the cost of the community..."
You hit the nail on the head and the entire world, of whatever political leanings, scratches their head at what false liberties we grant the individual, and what liberties we deny the common good.
Have they forgotten that This Is Not A Democracy But a Republic???
Totally incredible that they are abandoning their favorite misunderstanding of the nature of this nation!
Dr. Snyder -
How about a followup column, about how the court and legal system caved into, and then served, the Nazis, and how very quickly that came about once Hitler took power. People today keep talking about our checks and balances, as if we are safe. Not so, when good people step aside and leave the compliant scumbags to run the country. How quickly Hitler silenced, outlawed, and drove away his critics and opponents is stunning when one looks at the timeline in 1933. Most people today don't (and won't) see how easily that can happen. The Nazis technically had law and order, just of the fascist type.
I so not see how they can get out of this one. A court, the Supreme Court of Colorado, has ruled, based on a hearing by the lower court in which both sides presented arguments and evidence, that Trump is not eligible because he engaged in insurrection. They could probably legitimately get out of it by turning it over to the Congress by agreeing with the lower court but advocating that only the Congress, also because of the text of the 14th amendment, could alter their decision by deciding by a two thirds vote to put Trump onto the ballot.
As a professor, I taught the Constitution for 20 years. Still, not being a constitutional lawyer, I refrain from publicly assessing constitutional issues that are brought before the Supreme Court.
Though Harvard Professor Lawrence Tribe’s assessments are more in line with my political biases, I find Linda Greenhouse’s cool-handed analyses more accurate.
Has Greenhouse publicly commented on this current issue? If so, can you provide a link to same? Personally, I’m convinced by Willam Baude and Michael Stokes Paulsen. Professor Tribe agreed with them in his article for The Atlantic that he co-wrote with J. Michael Luttig.
Ann I don’t recall a Greenhouse article on the 14th Amendment Article 3 issue. She has published recent articles on the politicalization of the Supreme Court in the NYT and, I believe, in the NY Review of Books. You might Google her.
Thanks, I did google her, but found nothing on the current controversy. And I saw a YouTube interview with Tribe where he describes himself as a Constitutional purist who thinks Anderson v Griswold should be affirmed, BUT he said the USSC may decide to be “practical” and overturn it just to avoid the predicted chaos and violence of removing Trump from the ballot. Whatever happened to “without fear or favor”?
Ann The Roberts Court has been called, by a justice, the Stench Court.I consider it the Retrograde Court, whose originalism is taking us back to the 19th century or earlier. Of course then we had John Marshall to make judicial policy when necessary.
Another splendid statement of the realities and the huge stakes at play in the Colorado decision and in whether Thomas recuses or not. Will the Court really allow itself to look as silly and worthy of contempt as it will if it gets this decision wrong, i.e., partisan? Has Roberts no influence/control/shame?
Greetings to All!
I think we should all hold off on the reflexive prognosticating about what the Court will decide in the Armstrong case, take a deep breath and consider a few factors--------
First and foremost, this or any Court will seek a way to shave down the sharp edges of any decision deemed "political". If they can get away with punting on the case procedurally, they will. I am certain that the majority of the Court, like the majority of the Country, would want to let the voters decide the election, not the Court. I'm not saying that a decision upholding the Colorado Supremes would reflect a desire to have the Court decide the election, far from it. Just pointing out the old reality that the Justices read the papers. Or, in this day and age, read their twitter ("X" marks the racist billionaire spot) feed.
Thus, I think they may boot the case on "ripeness" grounds, i.e., determining that given the number of similar challenges in other states, with various methodologies of dealing with elections, the case is not yet ready for full review.
Second, let's focus on the text of Section 3 of the 14th: therein, the following circumstances demand exclusion from running for office of those who having previously taken an oath to support the Constitution----those who "have engaged in insurrection or rebellion against the same (Constitution & US), or given aid or comfort to the enemies of thereof".
Critical here is the explicit distinction between insurrection and rebellion. In the wake of the Civil War, "rebellion" was obvious. Yet "insurrection", while less obviously self-explanatory, is clearly a lower degree of activity than rebellion. Thus the argument that an "insurrection" must rise to Civil War-esque sustained armed conflict is false.
Third, Section 3 also provides an explicit bypass around the stark prohibition of running for office. If the Congress votes by a 2/3 majority, it may exempt the otherwise disqualified candidate from the disqualification due to insurrection, rebellion, etc.
This provision is not discussed nearly enough. Those who argue that the Colorado court is depriving the People unjustly of a candidate of their choice should read this provision. This is their outlet.
Finally, while the concept of "insurrection" does seem to cry out for clarification, it is important to note that the federal district court in Colorado tried the matter, with Trump's side arguing that he did not commit insurrection. They lost that argument.
Signed, sealed, delivered. The Supremes are deciding the propriety of the Colorado Supreme Court's decision, not any decision from other states. So they are free to affirm the Colorado Supreme Court decision, and in fact they are virtually obligated to do so, absent some finding of lack of discretion in the trial court's factual findings.
I will go out on the proverbial limb here and say we will see one of the following decisions from the Supremes---
Either a procedural punting on "ripeness" or "justiciability", or a 6-3 decision upholding the Colorado Supremes, with Kavanaugh, Barrett and Roberts joining Sotomayor, Kagan and Jackson in the majority.
This is a good post, Daniel! I agree with much of what you say here re: SCOTUS' desire to stay out of politics. They will almost certainly punt on the question whether or not Trump is an insurrectionist, along the lines you outlined.
I disagree with your prediction, though, and predict instead that the court will stay Colorado, based on a procedural argument that (1) 14.3 cannot be decided differently in different states and (2) too many cases are still pending.
The Constitution says no person shall HOLD office if... says nothing about running for office. .(see my above and also and https://www.newyorker.com/news/daily-comment/could-a-trump-win-put-his-running-mate-in-office)
Hello Mr Potter and thanks for this observation.
In the past few days when not at work, I have reviewed and reviewed again Baude and Paulsen and comments offered herein on their Sweep and Force analysis.
Curious, but perhaps of use... If your observation about the distinction between holding office and being a candidate for office is assumed, then two things logically follow:
the 'sweep and force' in effecting Sec 3 is severely restricted in respect to persons in positions to recognize and enforce the disqualification and in respect to the actual time in minutes, hours, and days within which to do so.
Do you see this?
Oh I see what you are reading about sweep and force... the problem is some of us think he is disqualified end of story period.. but others argue not and obviously he's running! So the issue is the SCOTUS interjection in this and what it will mean or whether it will have any force or respect. The SCOTUS would do us a favor if they ruled, barring Thomas, that the Constitution says that Trump is disqualified. Or they can allow each state to give Trump due process... though he's has plenty of due process already. But they've agreed to rule....
Hello Mr. Potter
today is Feb 15 2024
have you seen? :
https://electionlawblog.org/?p=141452
Gerard Magliocca: “The Electoral Count Reform Act and Section 3”
February 15, 2024, 7:11 am Supreme Court
Going forward….https://en.m.wikipedia.org/wiki/Electoral_Count_Reform_and_Presidential_Transition_Improvement_Act_of_2022
We must deal with the insurrection that has taken place and disqualify Trump.
Thanks!
Hello and thanks, Mr. Potter.
Your points are well taken and of immediate need of action, action determined within and with the tools provided by the Constitution and in the American peoples' interest as constitutionally, democratically, self-governing.
Will check it, thanks!
no, I do not. Kindly please explain Bob.
In rereading this and other essays by Prof Snyder, along side reviewing Baude and Paulsen, especially sections on terms and definitions in the context of regular usage, I was struck by a sense of logical satisfaction with Baude and Paulsen's analysis, which in turn gave me a sense of the importance of amassing evidence with a thoroughness and impartiality so as to then be able to let the evidence speak for itself. In the case of Trump and Sec 3, his choices and actions make more and more evident his intention and more and more evident his disregard for the Constitution which he made oath to always support.
My point is that Baude and Paulsen provide an analysis which establishes meaning, from which it can be understood what choices and actions come under its authority to make disqualification. It is evidence and meaning that constitute the effecting, the evidence-based logical interpretation on which disqualification must rest. It concerns and individual's choices and actions that carry significant constituting and or supporting influence to events involving others; intentions are reciprocal, intentions and objectives become more and more apparent from the choices and actions which proceed from them. Sec 3 effects disqualification by capturing meaning FROM this larger moment of persons' choices, actions, and consequent subsequent choices and actions in relation to the authority of legal government and the Constitution.
To assert, after the fact (or facts which logically suggest Sec 3 disqualification), that Sec 3 does not thus capture the 'true' intentions and objectives of the choices and actions is to suggest that the choices and actions can and did and do mean something not like 'insurrection' or not like 'rebellion'. That assertion is possible, but it may lack any evidence-based logical satisfaction.
The satisfaction of this sort of evidence-based capture of intention is what is difficult to understand when the logic of the evidence is the source of the satisfaction. So it is imperative to ask for the alternative narrative of intention and objective, and it is imperative to make reasoned efforts to discover alternatives on one's own. However, the logic of the evidence may seem to point to one and only one intention-objective based set of choices and actions; in the case of insurrection or rebellion as understood in Sec 3, effecting disqualification thus may spare an entire nation of people and their values for social governance from being destroyed.
I suggest that Sec 3 is clear in what protections it provides and is effective and not careless in the ways it can effect disqualification. It is not making judgement; it is capturing, from within a very dangerous set of circumstances and events, individual intention and objective directly from individual choices and actions.
Thanks Mr Potter. This is my current best reading and retelling.
I am grateful for your questions, your comments, your observations and assessments.
I have already commented on your last post, Timothy, and pointed out that it is not as simple as you make it sound. Honestly, you sound as if you have receded into a MSNBC bubble!
Yes yes yes, Clarence Thomas is ridiculous. And so is/was George Santos, and so is Robert Menendez. Shamelessness is bipartisan in 2023, and political cowardice (looking at you, Chuck Schumer!) is, as well.
The Colorado decision is a tough one, legally speaking. Most likely, SCOTUS will side with Trump, on legal grounds, for all the reasons I stated in my last post. This is a blow to all of us who want Trump to disappear forever - but it is decidedly NOT a sign of a broken or corrupt court. Rather, any suggestion of this sort helps in further undermining the legitimacy of our institutions which are holding by a thread. Do we want to be progressive bomb throwers? or do we want to save our republic? Maybe it is time to read your 20 theses of ON TYRANNY again...
What legal grounds? There aren’t any. It’s actually a pretty easy call.
You owe me a beer, Nick.
Pretty easy call - indeed. Just as I predicted. Unanimous decision.
Don't you agree that it is time for some serious self-reflection, both for you and for Timothy? You can go crazy-radical now, and claim that even our 3 liberal judges are corrupt and/or morons as they missed the 'easy call' - or you can try to understand them.
Hi Nick,
I recall our vigorous debate on this issue from a month ago - you offered a beer, I offered you two. Sounds like our liberal judges agree with me - this may become a unanimous decision. Which is good, of course: unanimity. Except that it is not what you nor Tim Snyder predicted.
As I predicted, this was a fool's errand. It did a lot of damage to our shared goal of defeating Donal Trump. Of never ever seeing him anywhere near the Oval Office, again.
Anyway -the decision is not out, hence premature to say too much. But let's come back to our prior arguments after the verdict: I heard a lot of what I have been saying all along this morning - expressed by Jackson and Kagan...
See reply under David's answer. Loads of legal grounds.
Quoting your own previous argument as proof of your argument? Dubious!
Ha! Clever. But I am not interested in clever - only interested in a real exchange of information.