Thank you Professor Snyder. Your sharing of research and resources make us informed and smarter. You are my trusted source for what is happening here and abroad. I’ve learned much from your books, writings, and your Ukraine class via YouTube. Bravo you.
I strongly suspect that as Antonin Scalia played with words instead of original intentions in the Heller decision, which has made our lives so much more dangerous, the present Court will do so again in this case, with the potential for the same. I do hope I'm mistaken.
It amazes me that the discussion I am hearing is whether he is barred from RUNNING! The British question, "Is he unfit to stand?" Is there a difference between running and standing? Thank you for all these articles.
I think it's 2 different issues: one is legality, the other is competence -- both are being considered in various arguments, although probably not the competence one, before the Supreme Court
I started my lawyer life doing the historical background research - as an undergrad - for the origins of privacy in being "secure in their persons, houses, papers and effects against unreasonable searches and seizures" - in 1976-77 while interning for the law firm that represented Barlow's Inc. in a Fourth Amendment case, so I feel completely at home in the history of the constitution.
During the discussions of whether or not the president is an officer, not a single justice mentioned the amicus briefs written by historians and lawyers who specialize in Reconstruction. And when Jason Murray was asked about it, he didn't refer to what the authors of those briefs wrote. Those briefs tell the story of of 14/3 masterfully and brilliantly. Not even the D-appointed justices brought them up.
The justices, just like many media outlets that report on presidential elections as though they were horse races, treated the case before them as just another case. Everything is normal here. The want of seriousness about the dangers we're facing in this country is unforgivable.
They cut Murray off every time he tried to mention the historians. Trump's lawyer went so far as to say the Jan 6 evidence was hearsay and inadmissible.
I had the impression that neither Mitchell nor the justices really questioned the merits of the insurrection argument. The justices were obsessed with the “officer” question, and they were really obsessed with Griffin’s Case, which was not only demolished by the Colorado Supreme Court’s decision, but also by the Baude/Paulsen law review article on which it was based. Also, other briefs pointed out that Justice Salmon Chase completely reversed himself two years later riding circuit on a case involving Jefferson Davis. So Griffin’s Case should have been tossed in the trash heap. Murray failed to point that out in oral argument, which is something I’d like to shake him for.
On the money. They are under no obligation to consider the amicus briefs, or to act rationally, for that matter. We know that at least three of the nine lied during their testimony during their appointment hearings and have seen repeatedly the twisting of logic to conform to their desired outcomes.
I have the deepest respect and admiration for Dr. Snyder and the scholars and attorneys who spoke truth to the Court, but I have no illusions as to the arrival at the right decision.
The next shoe to drop may be the overturning of the Appeals Court ruling that the President is not above the law. With all the consequences that too might have.
Yes, you're right, but had Jason Murray brought up the Reconstruction briefs re whether or not the president is an officer, he might have avoided falling flat when he was asked about it. And *that* is on him.
Absent a cataclysmic event such as bloody civil war, i.e. in "normal times" such as ours (and yes, we can debate normal - I mean we are not burying tens of thousands of people right now), the 14th amendment is enforced by
(1) an insurrectionist determined to be exactly that in a court of law
(2) Congress determining the same and refusing to allow a candidate - as opposed to an individual state
If we had one of our parties behaving like Hamas on October 7, and Sinwar Trump openly celebrating that and asking for a repeat massacre - do you think our SCOTUS or Congress would let him run for office?
This little thought experiment tells you everything that was wrong with the pro-Colorado certitude: It matters HOW you define an insurrection. It matters WHO defines it.
And that is what SCOTUS will highlight in its ruling, I assume.
Many thanks for your help understanding our current situation. I often fear it may be preaching to the choir, but you arm us with the facts so that your wisdom and knowledge may reach others.
Thanks also for your work helping Ukraine. The importance of US support cannot be exaggerated. If only our Republican Legislators could have your wisdom.
I listened to the arguments on CSpan. Many of the majority were dismissive not only of Colorado's case but of the lawyer. Over the years, I've listened to many arguments (ThankYou CSpan) and I've never heard anything like it. Almost like a fraternity hazing. It was his first SC case and they steamrolled him. I think all the justices were resentful of having to hear and decide this case at all. They were behaving as though it was Colorado's fault, rather than Trump's, for putting them in an unprecedented situation. Of course, the majority is more comfortable overturning precedent in order to degrade democracy, than setting precedent to protect democracy. I think they'll decide 9-0 in Trump's favor - to punt and to warn off any other states who might think of making them work too hard.
“… I think all the justices were resentful of having to hear and decide this case at all…”
Bingo! That was also my impression. All nine of them (except maybe Sotomayor) are COWARDS who don’t want to DO THEIR JOB. They’ve also been threatened with a barrage of revenge lawsuits by a right wing activist lawyer named Chris Sevier, who has filed a lawsuit in Tennessee to remove Biden/Harris under Sedtion 3 of the 14th Amendment. Sevier has filed a motion in this docket (#23-719, Trump v Anderson) to join the two lawsuits so they can be decided together. That motion has been scheduled for discussion by the justices next Friday, Jan 16th at their weekly joint meeting. Sevier’s motion put the justices on notice that his activist group has lawyers in 15 different states with identical Biden/Harris removal lawsuits ready to file the day after any decision the Court might render that removes Trump from the ballot. One of the justices hinted at the possibility of a cascade of revenge lawsuits if Anderson v Griswold was affirmed when questioning Murray, but no one admitted in open court that the USSC has already been THREATENED with these lawsuits. Murray replied to the question that he thought the court system could handle it as the lawsuits would be frivolous and the Court could craft an opinion narrowly construing what constitutes an “insurrection against the Constitution” such as to preclude, for example, allowing a border invasion by not enforcing our immigration laws, but the impression I got was the justices are AFRAID OF THE BLACKMAIL. It’s despicable on their part. They’re cowards who don’t want to do their jobs.
The oral arguments are over, and based on what we have heard it seems highly likely that SCOTUS will disagree with you, Timothy. But not only that - it appears that the three liberal judges also disagree, and that this may be a unanimous decision.
Now - before I continue, let me state that I abhor Donald Trump. I consider him an existential danger not just to Ukraine but to our very republic. I start with this statement hoping that the following will be heard...just heard. We can disagree, of course - but we need to be able to hear each other.
I have been troubled, Timothy, by the certitude with which you judge this case. And by the certitude of those commenting over the last 3 months - I have had spirited exchanges with some of you. Many constructive ones, a few obnoxious remarks notwithstanding.
Today our liberal judges expressed precisely the skepticism I have expressed in these exchanges. This may help, ironically: help you see that your absolutist positions were erroneous. I wrote this on Jan 8th, the very last time I bothered commenting:
"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!
...
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..."
If this decision goes 9:0, as it appears to go after this morning's hearings, then the Thinking About... community has two options to consider:
We can either conclude that not only the usual suspects...Clarence Thomas, Gorsuch, Kavanaugh et cetera...are corrupt. No, the liberal judges are corrupt as well. Or intimidated/bullied. Or legally inept. How else could they not see the light in a case that was so crystal clear, right?
The alternative option is to conclude that we were wrong. The skepticism of the three liberal judges helps us understand that this was indeed a complex case, and that there are very good legal arguments -as expressed this morning- against the Colorado decision.
To repeat my question from a month ago: Do we want to be progressive bomb throwers? Do we want to malign the integrity of the entire court, after today (and after the inevitable verdict) - or do we want to reconsider our passionately held opinions?
A big choice - and the choice we make may help tilt the November election, for or against Trump.
Well said. As many of us know, we will have to work hard to win this Election. Is Trump a danger? Yes, of course, so we must work harder. To me, it seems the clearer issue is the immunity argument. If that can be dealt with quickly, then Judge Chutkan can proceed and discovery can be completed, leading to a key trial before the Election. A conviction will also not disqualify him, but it may persuade many of those who are not hard core Trump supporters not to vote for him.
It is irritating beyond belief that the justice department chose to be so timid in the first 2 years of the Biden presidency! I fervently hope future historians will not look at this fiasco the way current historians look at the errors van Papen and Hindenburg made in those crucial years before the Weimar Republic went under.
Trump needs to be convicted in at least one case before the late summer, so that the crucial centrist vote swings towards Biden.
That is where all the efforts should be.
The appeals court trio did this well, procedurally - they closed off some potential brinkmanship which Trump is notorious for. Now let’s hope they can move, at long last…
BINGO. If you’ve kept up with the docket filings (#23-719, Trump v Anderson), you will know that one Chris Sevier, an attorney known for filing crackpot right wing lawsuits, filed a suit under Section 3 in Tennessee seeking to remove Biden/Harris from the ballot. He filed this after the USSC started accepting briefs in Trump v Anderson in early January. Then Sevier filed a motion seeking to have his Biden removal lawsuit joined with the Trump removal lawsuit so the two could be ruled on together by the USSC. The Court has this Motion to Join scheduled for “discussion” next Friday, Jan 16th at their weekly joint meeting of the justices.
In Sevier’s motion he puts the USSC on notice that his activist organization has lawyers in 15 different states standing by with identical Section 3 lawsuits to remove Biden/Harris and that they will file them all the day after any decision the Court hands down affirming Anderson v Griswold. Imho, this is JUDICIAL BLACKMAIL and no one talked about it during today’s oral arguments. It was hinted at when one of the justices posed a “what if” question about the potential cascading of revenge lawsuits if Trump were removed from the ballot and wouldn’t that create chaos and confusion throughout the judicial system. Murray answered that such filings couldn’t be avoided but they would be frivolous and could be dealt with. Murray also told the justices that they could write an opinion that would tightly circumscribe what would be considered an “insurrection against the constitution” such as to preclude some of the arguments against Biden (like the border problem is an invasion and failure to stop it is an insurrection). Neither Murray nor the justices admitted that such a lawsuit has been filed and that the USSC has been THREATENED with an immediate retaliation if they affirm Colorado.
This is DESPICABLE, and for the judges to not only refuse to rule “without fear or favor” , but to CAVE IN TO BLACKMAIL is criminal on their part. And that includes Kagan and Jackson. Frankly, I’m horrified at this Court’s refusal to DO THEIR JOB.
Thanks Ann for this detailed account of the shenanigans of lawyers such as Sevier. Not surprising, of course: Not only did one of the justices -was it even Roberts?- bring up such a hypothetical yesterday, we all anticipated such cases.
As to my characterization of "Or intimidated/bullied", we see it a bit differently. What you describe as Kagan and Jackson "caving into blackmail" and label "despicable" I see as the standard judicial caution that most justices apply most of the time - and good justices almost all of the time. See, what I meant when I wrote "intimated/bullied" is that someone threatened to burn down their house, or poison their pet, or lay off their spouse - and a justice then, AGAINST THEIR OWN JUDGMENT, caving in to blackmail. In contrast, what Kagan and Jackson do in your example is ask: "How does my upholding Colorado impact the legal landscape - this year, next year, in 10 years?"
And that is valuable judicial restraint, as much as you and I might dislike the result in this case.
Your little paragraph re: Murray highlights the foundational weakness of the pro-Colorado case - of Timothy's case: WHO decides what constitutes an insurrection? If the Colorado supreme court should be allowed to do this, why not the Tennessee supreme court against Biden, or a future Democratic candidate? Who then steps in and declares it "frivolous" - SCOTUS, again?
This would be a mechanism for utter chaos! SCOTUS would be reduced to a partisan instrument, and one side of our deeply polarized country would always scream "BLACKMAIL"! A good justice does not want that - liberal or conservative in their judicial leanings.
No, the question "Was X's conduct an insurrection?" needs to be determined by Congress, or via a verdict in a court of law. It cannot be 'declared as obvious' by a cable news expert, and not even by Timothy Snyder. That is more obvious after yesterday than ever.
Secondly, it also cannot be right, constitutionally speaking, that a single state decides 14.3 for itself. Again, forget Colorado: Imagine Texas or Tennessee barring Biden, as in your example. We would be outraged, as this state decision has FEDERAL consequences. That was another cogent argument advanced by the judges yesterday.
Anyway - as I said before: We can disagree on this. But we should be able to agree that these objections are serious - the anticipated unanimous verdict proves that.
Thanks for the explanation of what you meant by intimidation of the justices. I still must disagree with you on the necessity of the justices to go to the merits of Anderson v Griswold. Have you read all the briefs, including the amicus briefs? The factual, legal, and historical evidence in favor of affirming Anderson v Griswold is overwhelming. The weakness of Trump’s argument is stark and irrefutable. Mitchell admitted as much in his oral argument. I agree with the commenter here who said that the justices other than Sotomayor sounded as if they were angry that they were even being put in the position of having to decide this case.
The way this case came to the USSC is the way most cases come to them…from the state courts. One state does one thing, another does the opposite, they both have constitutional implications that are now in conflict and the USSC must decide which one is correct. This happens all the time and has been happening for over a hundred years. How do you think the USSC got involved in the question of abortion? Roe v Wade took a question in which the various states were saying all kinds of conflicting things, decided there was a constitutional right to abortion and poof! In one written statement abortion was legal in all 50 states. Then 50 years later THESE JUSTICES decide that Roe was wrong, overturn it, and…SEND THE ABORTION QUESTION BACK TO THE STATES, which has now resulted in DIFFERENT STATE LAWS and CHAOS AND CONFUSION FOR ALL WOMEN IN THIS COUNTRY. The very thing that you say they should avoid. Well, these justices didn’t seem to mind sowing chaos and confusion with respect to abortion.
Mind you, I don’t think the USSC erred in Dobbs. I went to law school right after Roe was decided. It was a bad decision, and it needed to be overturned. But worrying about the fact that it now means different states doing different things is not a reason for refusing to do what the constitution demands that you do. It wasn’t a reason in Dobbs and it shouldn’t be a reason here.
Anderson v Griswold is THE perfect case to decide if Trump is an oath breaking insurrectionist barred from elected office until such time as 2/3 of each chamber of Congress removes that disability. There were no procedural defects. There was due process. There were two very lengthy legal opinions issued, one by the trial court and one by the State Supreme Court. The Colorado Supreme Court went into extensive detail on both the legislative history of Section 3 and the history of all the words used in that part of the Constitution. All the parties to that lawsuit, INCLUDING TRUMP agreed to the FACTS found by the district court, they just didn’t agree on the interpretation of those facts. And the facts were EXTENSIVELY DETAILED.
The USSC had the merits handed to them on a silver platter. It may have come to them from just one state, but the issue was and is RIPE FOR DECISION. Once decided, that USSC decision, in my opinion as an attorney, is BINDING ON ALL 50 STATES. It’s disingenuous for any of those justices to pretend that affirming Anderson v Griswold is binding just on Colorado. When the USSC decides that Trump is an oath breaking insurrectionist under Section 3 and ineligible for elected office, that’s it. Done. Everywhere.
So what of Chris Sevier and his merry band of renegade lawyers file over 15 lawsuits trying to take Biden/Harris off the ballot? The court system is well equipped to deal with frivolous lawsuits, and lots of them. They do it all the time. And if one of them ends up at the USSC, then it gets decided…IF the Court decides to do its job and not to run away.
As it stands now, should the USSC issue a decision that the states do not have the ability to judge a Section 3 lawsuit, and only the federal system has that ability, but the Federal system has, as the Court admits, no procedure for enforcing Section 3, then how does it get enforced? If the states can’t enforce it, and the federal government can’t enforce, then who enforces it? No one? Oath breaking insurrectionists just get away with being oath breaking insurrectionists, they get to run for and hold elected office and destroy this country from within? That’s the solution?
This result is DESPICABLE and I won’t back down from that position. When Gorsuch (I think) asked, “How can we really know what was in the minds of the drafters of Section 3?”, the answer is READ THE BRIEFS OF THE CON LAW PROFESSORS AND THE HISTORIANS. It’s all there. Every.Single. Word. Everything in the Congressional Globe, the floor debates, the newspaper accounts, etc. Every blasted thing these justices need to decide this case is right before their eyes. They just don’t want to see it.
This very interesting, Ann. Thanks for the long reply!
I agree with you on Roe - that it was a bad decision when issued, legally speaking (Warren Court), and that it should have stood based on 50 years of preference. These judges - the conservatives, that is- are willing to disregard precedence when they disagree...you and I agree on that.
A crucial difference: While an individual woman's abortion, or denial of an abortion, is...well, individual, Anderson v Griswold is not. Meaning: A woman in NY state is not harmed by what Kentucky or Nebraska prescribes for women in Kentucky or Nebraska. As much as I disagree with the political position of the anti-abortion crowd, I acknowledge that if you do believe that each state has a right to decide this for its citizens, then you can justify...LEGALLY justify Dobbs.
Anderson v. Griswold on the other hand harms me, and you, regardless of where we live. In a system where 50 states join to elect a president for ALL states via the electoral college system, you cannot allow each state to determine its own rules as the decision in, say, Kentucky or Colorado, disenfranchises not only that state's electorate but the entire country's electorate.
I sense that we agree on this. You mention that SCOTUS should affirm Anderson AND THEN EXPAND this to the entire country - judge for the entire country. I agree with this, procedurally, even you and I do not agree on Anderson v Griswold on its merits -see below. The reason for this is obvious: It would be absurd for a state to ban a candidate and then, via the electoral college, have the barred candidate become the president FOR THAT VERY STATE. I am not a lawyer, but I can sense the chaos this would create: How could a Colorado voter (or any other voter, in any other state which bans a candidate who then wins the EC) agree that they live in a democracy, if their new president wasn't even eligible in their election?
Your argument re: due process is not a good one, IMO. As was mentioned yesterday -and cited in the dissent by one of the 3 Colorado judges in the 4:3 decision- the fact that it took less than a month to arrive at such a monumental decision is not acceptable. The fact that the denied candidate did not put up a serious defense should not be relevant - we liberals always argue, rightly so in my opinion, that a poorly adjudicated murder trial should be relitigated if the (public) defense chose to forego a serious defense, right? The same concept applies here.
In essence, our disagreement comes down to the question of "What constitutes an insurrection?", and more precisely who should determine this. You argue, if I understand you correctly, that SCOTUS should have taken the opportunity to settle this very question "Did Trump's support for the Jan 6 events qualify as insurrection, and thus make him an insurrectionist - with 14/3 to apply then?" as part of the Colorado case.
I disagree. I have all the empathy in the world for a justice's opinion that it is not their job to answer that question. As you know perfectly well, even Jack Smith did not charge Trump with insurrection. Why not? Because it is a higher hurdle to pass, and Jack Smith wanted to speed up and simply his case. Fair enough - I am all for speeding up all trials so that we can get them done before the November election. But we cannot, in a decision this monumental, have the federal special counsel leading the Jan 6 investigation choose NOT to charge him with insurrection, and then SCOTUS determine that he did indeed do what 14.3 alleges.
All of which is to say: A person who values SCOTUS as an institution, and who values judicial restraint, can be perfectly in support of what all 9 justices appear to have concluded. This liberal who abhors Trump certainly supports it.
And that was my larger point: Fair enough if anyone still believs that Colorado was right, and SCOTUS is about to be wrong. But to suggest that this isn't a reasonable conclusion, the one SCOTUS is about to announce, is in itself UNREASONABLE.
Well, we’ll just have to disagree. And I’m a lawyer, so there’s that, but you’re entitled to your opinion. I suggest you google and read the entire set of decisions, petitions and briefs that led us here. It wil take you awhile. You should start by reading the entire Baude/Paulsen law review article. The way the law works is that if the parties to the litigation agree on, and stipulate to, the facts of the case, then all the judge has to do is determine how the law applies to those facts. There is no remedy on appeal of you lose under these circumstances if your argument is that the facts weren’t correct and you made a mistake by agreeing to them.
Bear in mind that this MAY, maybe, not be the case in a criminal trial because the standards for judgment are higher when you are at risk of losing your life or your liberty (death sentence or jail). The legislative history of Section 3 makes clear that the drafters wrote this as a CIVIL remedy that did NOT take away either life, liberty or property. They considered stronger punishment, but felt that what was needed was not punishment, but rather simply barring the individual from elected office. In al other respects the disqualified individual was free to live their life however they wanted. They just had to stay out of elective office. The theory is that no one has the right to run for or hold office. It is a privilege, not a right. This is abundantly clear from the history of Section 3 and is elucidated at length in the various amicus briefs filed in support of the respondents.
The instigating event for the drafting of Section 3 was not the civil war itself, but rather the plot of the then Secretary of War, John Floyd, to prevent the counting of the electoral college votes for Abraham Lincoln and keep the newly elected President from being inaugurated. Exactly the same thing that Trump did. A few months later the war broke out, and John Floyd was an officer in the Confederate army. Section 3 evolved from there.
And again, I must repeat that the justices are being disingenuous when they say that Colorado is deciding for the entire country. The USSC will decide for the entire country if they go to the merits of the case. Let’s say that another state, for example, Texas, did the exact same thing as Colorado but decided the opposite. What would happen? The two cases get appealed to the USSC and the USSC decides which one is correct and that’s the end of it. The USSC ruling defines this for the whole country. The mere fact that members of the 1868 Congress had to be reassured that Jefferson Davis could never be elected President in spite of how popular he was, in spite of thwarting the desire of hundreds of thousands of voters to elect him, means without a doubt that Section 3 was designed to restrict who the voters are allowed to vote for in spite of popularity. Oath breaking insurrectionists are not allowed to hold elected office under the 14th Amendment of the Constitution. If different states disagree on who this applies to, the USSC must decide, and they must decide without fear or favor. The disqualification exists as a factual matter defined by the words of Section 3 without any particular proscribed procedure. Section 3 specifically allows Congress to remove this disability by a 2/3 vote of each chamber. How can they remove a disability if it doesn’t already exist?
My argument for due process is not only a good one, it’s the best one. I get it from the briefs of legal experts in Constitutional law. You should read them. Trump’s arguments are so weak even his lawyer was embarrassed to make them. Does it make sense to you that the most important person in our government, the President, could be an oath breaking insurrectionist and be the ONLY PERSON EXEMPT from Section 3? Does it make sense that Section 3 would prohibit an oath breaking insurrectionist from holding office but not running for office? That the ultimate decision must be put off until after the election? That you wait until the oath breaking insurrectionist has won the election and THEN you cancel the citizens votes?
Going to the merits here is not just the job of the USSC, it is their DUTY. Just because it’s difficult and controversial doesn’t mean they get to run away from it. There is a ton of quotes from various people involved in the drafting and implementing of Section 3, direct quotes, that the intention was for Section 3 to protect the country from elected officials sabotaging the constitution and constitutional procedure then “and into the future, for all time”. If you don’t believe me, read the briefs. The justices need to read the briefs too.
You are of course correct in all that you wrote. However, I should point out that there will be utter chaos if he is disqualified. If Biden beats Trump fair and square, the country has spoken. But disqualifying him will create doubts, uncertianties, chaos and the MAGA followers will double down and claiom political motivation and cheating. To get rid of Trump, it has to come down to the ballot box.
Biden won "fair and square" in 2020, with 100% of the legal challenges defeated, and what has that gotten us? How many times does the country have to speak to end the chaos that already is happening? Trump's supporters are like a religious sect: Never to respond to truth or reason.
True. But what do you suggest? On a big picture basis, Trump's supporters are not going away. Have you thought why they are using Trump to express their grievances? How should one address their underlying grievances, instead of simply talking them away as a "sect". If this country has to move forward, we have to listen to what is happening to the "rise of the Rest" as Farid Zakaria terms these "left behind" in technological change.
One thing the Democrats and Progressives could do is stop pursuing stuff like CRT and DEI, and especially stop having it infiltrate the K-12 school system to the extent that it negatively impacts the quality of children’s education. And I’m not talking about “telling the truth about history”. I’m talking about encouraging racial group identities in kindergartners, lousy methods of teaching reading and math (see California) and ridiculous “training” sessions in the workplace, DEI statements that must be included in job applications for teaching positions in post secondary education, and yes, forgiveness of student loans. I would guess that roughly half of MAGA voters didn’t even go to college, and a sizable number of the other half went but didn’t graduate. It wouldn’t surprise me if the rest of them went to college and either worked their way through and/or paid off their student loans. From their POV, loan cancellation only serves to benefit people who are not them and have wasted 4 years of their life getting a degree for which there are either no jobs or jobs that don’t pay enough to service the loans. All of these things make MAGA voters super angry and when Progressives look down on them for it, criticize them and call them stupid, racist, or more…well that’s what Trump feeds on. It’s that anger that makes Trump their “retribution” and Progressives ignore it and denigrate it to their peril.
The guy who thinks that Mitterrand is still the President of France, and that Helmut Kohl is still the head of Germany? I voted for him, and I will vote for him to stop Trump, but I think we need to have a serious conversation about replacing him for this election. If Biden gets any worse between now and November, even people who hate Trump will vote for him, just to avoid having a publicly senile old man who looks like a walking cadaver be the President.
So you think VP Harris is a throw away? I don’t! I believe that POTUS is bringing her along with him and that, should he fail, she is quite capable of serving.
Then the future of our Constitutional Democracy will be thrown to the wind. Is it or is it not the law of the land? If we defend the Constitution we may have a minority who create chaos, but so be it. We have already prosecuted and jailed many insurrectionists. We may need to continue until the rest realize that there are more constructive ways to engage in civil discourse.
I am not going to disagree as I fundamentally agree with you. However, let us try and win at the ballot box to silence all the Trumpists. And, as Ed Luce has pointed out ("The Retreat of Western Liberalism") Trump is a symptom of a deep malaise in the country, of which he is taking advantage. For the future, we need to tackle that -- I won't go into Ed Luce's thesis here.
connects important dots, provides opportunity for thinking through alternative outcomes
this is just to think out loud, not a finished effort, with everyone present:
This and other articles to which I have pointed, by way of wanting to understand others' perspectives and to obtain a conscious rational foot-hold on these distinctly different understandings. Each reveals a sincere grasp of fact and law which together form a sort of conscious coherence, but which consciously depend on distinct sets of assumptions about prudent interests and prudent outcomes.
Does this seem to imply that having the Constitution does not also mean having only one political society with only one set of laws and political norms? It would seem so. Prof Snyder has addressed this circumstance in essays that look at 'self-understanding' and ethical or value systems in the context of which social and political normative standards and institutional forms are legitimated.
My own sense of reasoned commitment is with the views that Prof Snyder presents, supported as these views are by William Baude and Michael Stokes Paulsen, "The Sweep and Force of Section Three," University of Pennsylvania Law Review, 14 August 2023 article on Sec 3 and by the historical events context to which Prof Snyder (and others, see "Trump v. Anderson: Writings on Section 3 of the Fourteenth Amendment" ) points that present both US domestic and other nation's experiences during the emergence of political movements and leaders that 'corrode' and undermine democratic constitutional systems. Especially relevant to me in RE the latter corrosive effects are:
"Brief of Experts on Democracy" (Ruth Ben-Ghiat, Sheri Berman, Larry Diamond, Rachel Kleinfeld, Steven Levitsky, Timothy Snyder), 30 January 2024;
"Brief of American Historians," 29 January 2024.
To these I would, again, point to Alan Guelzo's history, Fateful Lightning: A New History of the Civil War and Reconstruction (Oxford U Press, 2012).
14.3 is a prudent constitutional approach to an historically real threat to constitutional governance.
Trump's brand of political choice, which is corrosive to both the Constitution and rule of law, culminated in his choices to reject the Constitution in RE constitutionally legal electoral process and outcome and in RE promoting violent interference in the formal, constitutional legitimizing of the electoral process and outcome to enable orderly political transition. He brings 14.3 disqualification on himself.
In his “The Electoral Count Reform Act and Section 3”, Magliocca explains that two situations may combine to confuse the making of a ruling:
absence of comprehensive understanding by some Justices of the Supreme Court of the Electoral Count Reform Act of 2022 (“ECRA”);
and, consequences of the fact that "...ECRA did not create an independent cause of action".
Magliocca explains, "...the danger is that the Court may be unaware that there is even a problem because the details of the ECRA were not presented to them in any of the briefs" and "...In Trump, though, the Supreme Court may hold that states are barred from providing a cause of action to enforce Section Three. And there is no federal cause of action to enforce Section Three. This would mean that an “aggrieved” candidate could not invoke the ECRA judicial process for a Section Three claim and could only go to the Joint Session of Congress. The judicial review provision would be stymied, and chaos could result" and " there may be a meaningful difference for ECRA purposes between a holding in Trump that Congress must provide a cause of action to enforce Section Three against presidential candidates versus a holding that says that Congress need only authorize such Section Three enforcement".
The upshot, the event of "...a Trump victory in November will lead to a constitutional crisis culminating—ironically enough—in a challenge raised before the Joint Session of Congress that counts the electoral votes on January 6th,2025. The Electoral Count Reform Act of 2022 (“ECRA”) is national legislature that was supposed to prevent this kind of train wreck, but the interplay of the Act and the Court’s probable opinion in Trump may frustrate Congress’s intent".
An excerpt: "...the one common factor that united the voting rights decisions produced by the Roberts court has been their striking willingness to rewrite the text of one of the most celebrated laws ever to be passed by Congress."
In Trump v Anderson, we are confronted by another issue; I'm clear on that. I will continue thinking through what it is here that isn't being made explicit. How does Justice Roberts see Trump v Anderson in the context of the character of democratic American civil society both under the Constitution and within government by the States?
"Before the full Senate considers acting on the nomination of Judge Roberts, the American people have a right to know precisely how his appointment to the Supreme Court would impact their rights, their freedoms and their lives. "
and
"Judge Roberts’ expansive view of administrative power to suspend fundamental due process protections ...raises serious questions not only about Judge Roberts’ views on the separation of powers but also on basic principles of civil and human rights."
and
"
LCCR urges the Committee to carefully question Judge Roberts on whether he would respect precedent on matters of well-settled law, such as Brown v. Board of Education,10 Miranda v. Arizona,11 Plyler v. Doe,12 Baker v. Carr,13 Roe v. Wade,14 Lemon v. Kurtzman,15 Swann v. Charlotte-Mecklenburg Board of Education,16 Engel v. Vitale 17 and National Labor Relations Board v. Jones & Laughlin Steel Corporation.18 Our nation simply cannot afford to return to a pre-1930s interpretation of the U.S. Constitution or the rights and liberties that it guarantees.
The stakes could not be higher. The Supreme Court is closely divided on cases involving some of our most basic rights and freedoms. The American people want and deserve to know that any new Supreme Court justice will be committed to protecting individual rights, and will put our freedoms ahead of any political agenda."
Of course, there is now much and troubling history. At this moment, however, as does Sec 3, we must publicly look ahead and make more than adequate preparations for those who, from within, would commandeer interpretation of interpretation of the Constitution. Partisanship and personal prejudice are not reasoned bases for conducting government under the Constitution. Instead, we the people can and would be better off inclusively to now reframe this debate on Sec 3 to point to its very limited but effective function, while expanding our understanding of the distributed, balanced reasoned approach to democratic self-understanding and necessary legislation to expand conscious cooperation and to avoid by careful management significant disagreements of understanding and choices of action.
I would be grateful for your observations and questions.
excerpt: "Particularly troubling were many of the questions posed by the Justices about the effects that the decision of the Colorado Supreme Court, if allowed to stand, would have on other states. I am not suggesting that such effects on interstate federalism are “consequentialist” in the sense that the Court cannot properly take them into account in deciding and implementing constitutional first principles; instead I am arguing that the Court’s apparent impression of the potentially harmful effects itself reflects failure to deeply appreciate the basic constitutional structure surrounding presidential selection."
and
"If the U.S. Supreme Court doesn’t firmly understand this basic starting point—that the electoral college framework the Constitution sets up confers incredibly broad and decentralized powers on each state—then I fear for the quality of the opinions that Trump v. Anderson might generate. The Court’s manipulation of the meaning of Section Three can’t address the basic reality that states can (and ultimately will) do whatever they want as long as we have an electoral college model for picking Presidents, something on which our originalist Constitution is (for better or worse) quite clear."
Thanks again to Prof Snyder for providing so many tools for informed and reasoned appraisal of the events and the historical and constitutional context.
Are the Justices in need of improving context? Can this be also done in American public awareness? Is this a question that might facilitate the many political efforts to finally begin to turn most Americans toward using constitutional approaches to democratic politics, facilitating cooperation and managing differences?
The Justices are putting us all at risk if the current political divisiveness and tendencies toward factional violence and confrontation are not given an explicit place in their considers. It is not a secret that the prudent efforts to put into the Constitution the Fourteenth Amendment were firmly grounded in an explicit recognition of abiding, dangerous divisions and violent potential turns in confrontations.
In the case of former Pres Trump and of supporters of his who continue to publicly explicitly deny the legitimacy of the 2020 elections results and deny the intent of the violent occupation of the US Capitol on Jan 06 2021, can any American make a case with which the Justices would concur that it is both factual- and constitutionally sound-thinking to ignore see Sec 3 as a prudent and necessary self-effecting tool? Former Pres Trump and his supporters are not affirming the priority of the Constitution as the political and governance tool and statement of understanding of federal separation of functioning powers (or, better of functioning inter-related reasoned political agencies). The Justices must affirm and make explicit that the Constitution is this and that it is this that is at risk, it is this risk that Sec 3 clearly and properly addresses.
Trump and his supporters present us with a 'guilty until accused' situation. That presentment is an explicit attempt to game the federal system and the tensions, along with means of promoting cooperation and reasoned management of governance relations between States as governments and the US government. Of course the people of any and all States have an interest in the full maintenance and functional use of the Constitution to effect reasoned democratic governance. In the face of violent, organized effort promoted by the then elected and sitting President and explicitly aimed at subverting and replacing constitutional authority and procedure by which elected officials transition into office and out of office, Sec 3 provides focused means for governmental, not factional, not arbitrary, constitutional governance defense from within those offices and official capacities to protect and use the Constitution for preparing for and doing elections.
I am grateful to Prof Snyder and others who make as clear and as reasoned from fact and historical experience as it can be clear that "we can have the Constitution or we can have Trump", in this case by means of effecting Sec 3
It is not that I don’t believe you, Ann. You make as good a case as anyone could. I simply disagree.
And while you are correct that you are a lawyer and I am not - foolish for me to try to out-lawyer you here!- I am an academic scientist, and thus I know a thing or two about evidence. In medicine, you can make very elaborate cases for a given belief - and cite tons of literature in top tier journals. Have tons of key opinion leaders on your side- AND STILL BE WRONG. Often it is time…better evidence, Inconsistencies that cannot be resolved… which point to an entire set of beliefs to be wrong.
It teaches you humility, a decade or longer in medicine (or any other science, for that matter). As the saying goes: “There are only two types of doctors. Those who say they could be wrong - and those who have not realized that yet.”
The same applies here. Our SCOTUS justices are grappling with a very real dilemma. You bring up very valid points, but so does the other side.
The three dissenting (Dem appointed) justices in Colorado and our three Dem appointed SCOTUS judges, all with tons of highly ambitious and enormously resourceful clerks who desperately want Trump to be barred, have of course read all the amicus briefs. And unlike me, they understand exactly how to interpret every single legal argument. AND YET THEY DISAGREE.
That is my larger point.
If you want to walk away from this ruling believing that not just 6 conservative SCOTUS judges but also the 3 liberal judges are all corrupt and/or inept and/or intimidated-bullied, then Good Luck! Makes for a very dark view of our judiciary.
I think it is prudent -no, wise- for SCOTUS to punt on this. 100 years from now people will look back and recognize this: A court pushing a deeply political question back to the political realm.
Now, could this mean that, as a consequence, Trump gets elected and we see a modern repeat of Germany after 1933? Yes, and it is terrifying. I am of German heritage - nothing worries me more.
But SCOTUS believes that Congress and, ultimately, the voters need to settle this - and I think they are wise to do so.
Thank you Professor Snyder. Your sharing of research and resources make us informed and smarter. You are my trusted source for what is happening here and abroad. I’ve learned much from your books, writings, and your Ukraine class via YouTube. Bravo you.
I strongly suspect that as Antonin Scalia played with words instead of original intentions in the Heller decision, which has made our lives so much more dangerous, the present Court will do so again in this case, with the potential for the same. I do hope I'm mistaken.
It amazes me that the discussion I am hearing is whether he is barred from RUNNING! The British question, "Is he unfit to stand?" Is there a difference between running and standing? Thank you for all these articles.
I think it's 2 different issues: one is legality, the other is competence -- both are being considered in various arguments, although probably not the competence one, before the Supreme Court
Thanks for indexing these.
Superb work.
I started my lawyer life doing the historical background research - as an undergrad - for the origins of privacy in being "secure in their persons, houses, papers and effects against unreasonable searches and seizures" - in 1976-77 while interning for the law firm that represented Barlow's Inc. in a Fourth Amendment case, so I feel completely at home in the history of the constitution.
Marshall v. Barlow's, Inc., 436 U.S. 307 (1978)
During the discussions of whether or not the president is an officer, not a single justice mentioned the amicus briefs written by historians and lawyers who specialize in Reconstruction. And when Jason Murray was asked about it, he didn't refer to what the authors of those briefs wrote. Those briefs tell the story of of 14/3 masterfully and brilliantly. Not even the D-appointed justices brought them up.
The justices, just like many media outlets that report on presidential elections as though they were horse races, treated the case before them as just another case. Everything is normal here. The want of seriousness about the dangers we're facing in this country is unforgivable.
They cut Murray off every time he tried to mention the historians. Trump's lawyer went so far as to say the Jan 6 evidence was hearsay and inadmissible.
so infuriating.
Murray didn't have a snow ball's chance in hell....
I had the impression that neither Mitchell nor the justices really questioned the merits of the insurrection argument. The justices were obsessed with the “officer” question, and they were really obsessed with Griffin’s Case, which was not only demolished by the Colorado Supreme Court’s decision, but also by the Baude/Paulsen law review article on which it was based. Also, other briefs pointed out that Justice Salmon Chase completely reversed himself two years later riding circuit on a case involving Jefferson Davis. So Griffin’s Case should have been tossed in the trash heap. Murray failed to point that out in oral argument, which is something I’d like to shake him for.
On the money. They are under no obligation to consider the amicus briefs, or to act rationally, for that matter. We know that at least three of the nine lied during their testimony during their appointment hearings and have seen repeatedly the twisting of logic to conform to their desired outcomes.
I have the deepest respect and admiration for Dr. Snyder and the scholars and attorneys who spoke truth to the Court, but I have no illusions as to the arrival at the right decision.
The next shoe to drop may be the overturning of the Appeals Court ruling that the President is not above the law. With all the consequences that too might have.
Yes, you're right, but had Jason Murray brought up the Reconstruction briefs re whether or not the president is an officer, he might have avoided falling flat when he was asked about it. And *that* is on him.
If SCOTUS leaves tRump on the ballot, letting the voters decide, then how is a 14th amendment ever enforced? Do we even have a 14th amendment?
After today’s arguments and questioning by the judges, the likely outcome is a desiccated 14th Amendment.
Absent a cataclysmic event such as bloody civil war, i.e. in "normal times" such as ours (and yes, we can debate normal - I mean we are not burying tens of thousands of people right now), the 14th amendment is enforced by
(1) an insurrectionist determined to be exactly that in a court of law
(2) Congress determining the same and refusing to allow a candidate - as opposed to an individual state
If we had one of our parties behaving like Hamas on October 7, and Sinwar Trump openly celebrating that and asking for a repeat massacre - do you think our SCOTUS or Congress would let him run for office?
This little thought experiment tells you everything that was wrong with the pro-Colorado certitude: It matters HOW you define an insurrection. It matters WHO defines it.
And that is what SCOTUS will highlight in its ruling, I assume.
Many thanks for your help understanding our current situation. I often fear it may be preaching to the choir, but you arm us with the facts so that your wisdom and knowledge may reach others.
Thanks also for your work helping Ukraine. The importance of US support cannot be exaggerated. If only our Republican Legislators could have your wisdom.
Thank you! This is valuable information!
I listened to the arguments on CSpan. Many of the majority were dismissive not only of Colorado's case but of the lawyer. Over the years, I've listened to many arguments (ThankYou CSpan) and I've never heard anything like it. Almost like a fraternity hazing. It was his first SC case and they steamrolled him. I think all the justices were resentful of having to hear and decide this case at all. They were behaving as though it was Colorado's fault, rather than Trump's, for putting them in an unprecedented situation. Of course, the majority is more comfortable overturning precedent in order to degrade democracy, than setting precedent to protect democracy. I think they'll decide 9-0 in Trump's favor - to punt and to warn off any other states who might think of making them work too hard.
“… I think all the justices were resentful of having to hear and decide this case at all…”
Bingo! That was also my impression. All nine of them (except maybe Sotomayor) are COWARDS who don’t want to DO THEIR JOB. They’ve also been threatened with a barrage of revenge lawsuits by a right wing activist lawyer named Chris Sevier, who has filed a lawsuit in Tennessee to remove Biden/Harris under Sedtion 3 of the 14th Amendment. Sevier has filed a motion in this docket (#23-719, Trump v Anderson) to join the two lawsuits so they can be decided together. That motion has been scheduled for discussion by the justices next Friday, Jan 16th at their weekly joint meeting. Sevier’s motion put the justices on notice that his activist group has lawyers in 15 different states with identical Biden/Harris removal lawsuits ready to file the day after any decision the Court might render that removes Trump from the ballot. One of the justices hinted at the possibility of a cascade of revenge lawsuits if Anderson v Griswold was affirmed when questioning Murray, but no one admitted in open court that the USSC has already been THREATENED with these lawsuits. Murray replied to the question that he thought the court system could handle it as the lawsuits would be frivolous and the Court could craft an opinion narrowly construing what constitutes an “insurrection against the Constitution” such as to preclude, for example, allowing a border invasion by not enforcing our immigration laws, but the impression I got was the justices are AFRAID OF THE BLACKMAIL. It’s despicable on their part. They’re cowards who don’t want to do their jobs.
The oral arguments are over, and based on what we have heard it seems highly likely that SCOTUS will disagree with you, Timothy. But not only that - it appears that the three liberal judges also disagree, and that this may be a unanimous decision.
Now - before I continue, let me state that I abhor Donald Trump. I consider him an existential danger not just to Ukraine but to our very republic. I start with this statement hoping that the following will be heard...just heard. We can disagree, of course - but we need to be able to hear each other.
I have been troubled, Timothy, by the certitude with which you judge this case. And by the certitude of those commenting over the last 3 months - I have had spirited exchanges with some of you. Many constructive ones, a few obnoxious remarks notwithstanding.
Today our liberal judges expressed precisely the skepticism I have expressed in these exchanges. This may help, ironically: help you see that your absolutist positions were erroneous. I wrote this on Jan 8th, the very last time I bothered commenting:
"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!
...
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..."
If this decision goes 9:0, as it appears to go after this morning's hearings, then the Thinking About... community has two options to consider:
We can either conclude that not only the usual suspects...Clarence Thomas, Gorsuch, Kavanaugh et cetera...are corrupt. No, the liberal judges are corrupt as well. Or intimidated/bullied. Or legally inept. How else could they not see the light in a case that was so crystal clear, right?
The alternative option is to conclude that we were wrong. The skepticism of the three liberal judges helps us understand that this was indeed a complex case, and that there are very good legal arguments -as expressed this morning- against the Colorado decision.
To repeat my question from a month ago: Do we want to be progressive bomb throwers? Do we want to malign the integrity of the entire court, after today (and after the inevitable verdict) - or do we want to reconsider our passionately held opinions?
A big choice - and the choice we make may help tilt the November election, for or against Trump.
Well said. As many of us know, we will have to work hard to win this Election. Is Trump a danger? Yes, of course, so we must work harder. To me, it seems the clearer issue is the immunity argument. If that can be dealt with quickly, then Judge Chutkan can proceed and discovery can be completed, leading to a key trial before the Election. A conviction will also not disqualify him, but it may persuade many of those who are not hard core Trump supporters not to vote for him.
Exactly right, Truly B.
It is irritating beyond belief that the justice department chose to be so timid in the first 2 years of the Biden presidency! I fervently hope future historians will not look at this fiasco the way current historians look at the errors van Papen and Hindenburg made in those crucial years before the Weimar Republic went under.
Trump needs to be convicted in at least one case before the late summer, so that the crucial centrist vote swings towards Biden.
That is where all the efforts should be.
The appeals court trio did this well, procedurally - they closed off some potential brinkmanship which Trump is notorious for. Now let’s hope they can move, at long last…
“Or intimidated/bullied.”
BINGO. If you’ve kept up with the docket filings (#23-719, Trump v Anderson), you will know that one Chris Sevier, an attorney known for filing crackpot right wing lawsuits, filed a suit under Section 3 in Tennessee seeking to remove Biden/Harris from the ballot. He filed this after the USSC started accepting briefs in Trump v Anderson in early January. Then Sevier filed a motion seeking to have his Biden removal lawsuit joined with the Trump removal lawsuit so the two could be ruled on together by the USSC. The Court has this Motion to Join scheduled for “discussion” next Friday, Jan 16th at their weekly joint meeting of the justices.
In Sevier’s motion he puts the USSC on notice that his activist organization has lawyers in 15 different states standing by with identical Section 3 lawsuits to remove Biden/Harris and that they will file them all the day after any decision the Court hands down affirming Anderson v Griswold. Imho, this is JUDICIAL BLACKMAIL and no one talked about it during today’s oral arguments. It was hinted at when one of the justices posed a “what if” question about the potential cascading of revenge lawsuits if Trump were removed from the ballot and wouldn’t that create chaos and confusion throughout the judicial system. Murray answered that such filings couldn’t be avoided but they would be frivolous and could be dealt with. Murray also told the justices that they could write an opinion that would tightly circumscribe what would be considered an “insurrection against the constitution” such as to preclude some of the arguments against Biden (like the border problem is an invasion and failure to stop it is an insurrection). Neither Murray nor the justices admitted that such a lawsuit has been filed and that the USSC has been THREATENED with an immediate retaliation if they affirm Colorado.
This is DESPICABLE, and for the judges to not only refuse to rule “without fear or favor” , but to CAVE IN TO BLACKMAIL is criminal on their part. And that includes Kagan and Jackson. Frankly, I’m horrified at this Court’s refusal to DO THEIR JOB.
Thanks Ann for this detailed account of the shenanigans of lawyers such as Sevier. Not surprising, of course: Not only did one of the justices -was it even Roberts?- bring up such a hypothetical yesterday, we all anticipated such cases.
As to my characterization of "Or intimidated/bullied", we see it a bit differently. What you describe as Kagan and Jackson "caving into blackmail" and label "despicable" I see as the standard judicial caution that most justices apply most of the time - and good justices almost all of the time. See, what I meant when I wrote "intimated/bullied" is that someone threatened to burn down their house, or poison their pet, or lay off their spouse - and a justice then, AGAINST THEIR OWN JUDGMENT, caving in to blackmail. In contrast, what Kagan and Jackson do in your example is ask: "How does my upholding Colorado impact the legal landscape - this year, next year, in 10 years?"
And that is valuable judicial restraint, as much as you and I might dislike the result in this case.
Your little paragraph re: Murray highlights the foundational weakness of the pro-Colorado case - of Timothy's case: WHO decides what constitutes an insurrection? If the Colorado supreme court should be allowed to do this, why not the Tennessee supreme court against Biden, or a future Democratic candidate? Who then steps in and declares it "frivolous" - SCOTUS, again?
This would be a mechanism for utter chaos! SCOTUS would be reduced to a partisan instrument, and one side of our deeply polarized country would always scream "BLACKMAIL"! A good justice does not want that - liberal or conservative in their judicial leanings.
No, the question "Was X's conduct an insurrection?" needs to be determined by Congress, or via a verdict in a court of law. It cannot be 'declared as obvious' by a cable news expert, and not even by Timothy Snyder. That is more obvious after yesterday than ever.
Secondly, it also cannot be right, constitutionally speaking, that a single state decides 14.3 for itself. Again, forget Colorado: Imagine Texas or Tennessee barring Biden, as in your example. We would be outraged, as this state decision has FEDERAL consequences. That was another cogent argument advanced by the judges yesterday.
Anyway - as I said before: We can disagree on this. But we should be able to agree that these objections are serious - the anticipated unanimous verdict proves that.
Thanks for the explanation of what you meant by intimidation of the justices. I still must disagree with you on the necessity of the justices to go to the merits of Anderson v Griswold. Have you read all the briefs, including the amicus briefs? The factual, legal, and historical evidence in favor of affirming Anderson v Griswold is overwhelming. The weakness of Trump’s argument is stark and irrefutable. Mitchell admitted as much in his oral argument. I agree with the commenter here who said that the justices other than Sotomayor sounded as if they were angry that they were even being put in the position of having to decide this case.
The way this case came to the USSC is the way most cases come to them…from the state courts. One state does one thing, another does the opposite, they both have constitutional implications that are now in conflict and the USSC must decide which one is correct. This happens all the time and has been happening for over a hundred years. How do you think the USSC got involved in the question of abortion? Roe v Wade took a question in which the various states were saying all kinds of conflicting things, decided there was a constitutional right to abortion and poof! In one written statement abortion was legal in all 50 states. Then 50 years later THESE JUSTICES decide that Roe was wrong, overturn it, and…SEND THE ABORTION QUESTION BACK TO THE STATES, which has now resulted in DIFFERENT STATE LAWS and CHAOS AND CONFUSION FOR ALL WOMEN IN THIS COUNTRY. The very thing that you say they should avoid. Well, these justices didn’t seem to mind sowing chaos and confusion with respect to abortion.
Mind you, I don’t think the USSC erred in Dobbs. I went to law school right after Roe was decided. It was a bad decision, and it needed to be overturned. But worrying about the fact that it now means different states doing different things is not a reason for refusing to do what the constitution demands that you do. It wasn’t a reason in Dobbs and it shouldn’t be a reason here.
Anderson v Griswold is THE perfect case to decide if Trump is an oath breaking insurrectionist barred from elected office until such time as 2/3 of each chamber of Congress removes that disability. There were no procedural defects. There was due process. There were two very lengthy legal opinions issued, one by the trial court and one by the State Supreme Court. The Colorado Supreme Court went into extensive detail on both the legislative history of Section 3 and the history of all the words used in that part of the Constitution. All the parties to that lawsuit, INCLUDING TRUMP agreed to the FACTS found by the district court, they just didn’t agree on the interpretation of those facts. And the facts were EXTENSIVELY DETAILED.
The USSC had the merits handed to them on a silver platter. It may have come to them from just one state, but the issue was and is RIPE FOR DECISION. Once decided, that USSC decision, in my opinion as an attorney, is BINDING ON ALL 50 STATES. It’s disingenuous for any of those justices to pretend that affirming Anderson v Griswold is binding just on Colorado. When the USSC decides that Trump is an oath breaking insurrectionist under Section 3 and ineligible for elected office, that’s it. Done. Everywhere.
So what of Chris Sevier and his merry band of renegade lawyers file over 15 lawsuits trying to take Biden/Harris off the ballot? The court system is well equipped to deal with frivolous lawsuits, and lots of them. They do it all the time. And if one of them ends up at the USSC, then it gets decided…IF the Court decides to do its job and not to run away.
As it stands now, should the USSC issue a decision that the states do not have the ability to judge a Section 3 lawsuit, and only the federal system has that ability, but the Federal system has, as the Court admits, no procedure for enforcing Section 3, then how does it get enforced? If the states can’t enforce it, and the federal government can’t enforce, then who enforces it? No one? Oath breaking insurrectionists just get away with being oath breaking insurrectionists, they get to run for and hold elected office and destroy this country from within? That’s the solution?
This result is DESPICABLE and I won’t back down from that position. When Gorsuch (I think) asked, “How can we really know what was in the minds of the drafters of Section 3?”, the answer is READ THE BRIEFS OF THE CON LAW PROFESSORS AND THE HISTORIANS. It’s all there. Every.Single. Word. Everything in the Congressional Globe, the floor debates, the newspaper accounts, etc. Every blasted thing these justices need to decide this case is right before their eyes. They just don’t want to see it.
This very interesting, Ann. Thanks for the long reply!
I agree with you on Roe - that it was a bad decision when issued, legally speaking (Warren Court), and that it should have stood based on 50 years of preference. These judges - the conservatives, that is- are willing to disregard precedence when they disagree...you and I agree on that.
A crucial difference: While an individual woman's abortion, or denial of an abortion, is...well, individual, Anderson v Griswold is not. Meaning: A woman in NY state is not harmed by what Kentucky or Nebraska prescribes for women in Kentucky or Nebraska. As much as I disagree with the political position of the anti-abortion crowd, I acknowledge that if you do believe that each state has a right to decide this for its citizens, then you can justify...LEGALLY justify Dobbs.
Anderson v. Griswold on the other hand harms me, and you, regardless of where we live. In a system where 50 states join to elect a president for ALL states via the electoral college system, you cannot allow each state to determine its own rules as the decision in, say, Kentucky or Colorado, disenfranchises not only that state's electorate but the entire country's electorate.
I sense that we agree on this. You mention that SCOTUS should affirm Anderson AND THEN EXPAND this to the entire country - judge for the entire country. I agree with this, procedurally, even you and I do not agree on Anderson v Griswold on its merits -see below. The reason for this is obvious: It would be absurd for a state to ban a candidate and then, via the electoral college, have the barred candidate become the president FOR THAT VERY STATE. I am not a lawyer, but I can sense the chaos this would create: How could a Colorado voter (or any other voter, in any other state which bans a candidate who then wins the EC) agree that they live in a democracy, if their new president wasn't even eligible in their election?
Your argument re: due process is not a good one, IMO. As was mentioned yesterday -and cited in the dissent by one of the 3 Colorado judges in the 4:3 decision- the fact that it took less than a month to arrive at such a monumental decision is not acceptable. The fact that the denied candidate did not put up a serious defense should not be relevant - we liberals always argue, rightly so in my opinion, that a poorly adjudicated murder trial should be relitigated if the (public) defense chose to forego a serious defense, right? The same concept applies here.
In essence, our disagreement comes down to the question of "What constitutes an insurrection?", and more precisely who should determine this. You argue, if I understand you correctly, that SCOTUS should have taken the opportunity to settle this very question "Did Trump's support for the Jan 6 events qualify as insurrection, and thus make him an insurrectionist - with 14/3 to apply then?" as part of the Colorado case.
I disagree. I have all the empathy in the world for a justice's opinion that it is not their job to answer that question. As you know perfectly well, even Jack Smith did not charge Trump with insurrection. Why not? Because it is a higher hurdle to pass, and Jack Smith wanted to speed up and simply his case. Fair enough - I am all for speeding up all trials so that we can get them done before the November election. But we cannot, in a decision this monumental, have the federal special counsel leading the Jan 6 investigation choose NOT to charge him with insurrection, and then SCOTUS determine that he did indeed do what 14.3 alleges.
All of which is to say: A person who values SCOTUS as an institution, and who values judicial restraint, can be perfectly in support of what all 9 justices appear to have concluded. This liberal who abhors Trump certainly supports it.
And that was my larger point: Fair enough if anyone still believs that Colorado was right, and SCOTUS is about to be wrong. But to suggest that this isn't a reasonable conclusion, the one SCOTUS is about to announce, is in itself UNREASONABLE.
Well, we’ll just have to disagree. And I’m a lawyer, so there’s that, but you’re entitled to your opinion. I suggest you google and read the entire set of decisions, petitions and briefs that led us here. It wil take you awhile. You should start by reading the entire Baude/Paulsen law review article. The way the law works is that if the parties to the litigation agree on, and stipulate to, the facts of the case, then all the judge has to do is determine how the law applies to those facts. There is no remedy on appeal of you lose under these circumstances if your argument is that the facts weren’t correct and you made a mistake by agreeing to them.
Bear in mind that this MAY, maybe, not be the case in a criminal trial because the standards for judgment are higher when you are at risk of losing your life or your liberty (death sentence or jail). The legislative history of Section 3 makes clear that the drafters wrote this as a CIVIL remedy that did NOT take away either life, liberty or property. They considered stronger punishment, but felt that what was needed was not punishment, but rather simply barring the individual from elected office. In al other respects the disqualified individual was free to live their life however they wanted. They just had to stay out of elective office. The theory is that no one has the right to run for or hold office. It is a privilege, not a right. This is abundantly clear from the history of Section 3 and is elucidated at length in the various amicus briefs filed in support of the respondents.
The instigating event for the drafting of Section 3 was not the civil war itself, but rather the plot of the then Secretary of War, John Floyd, to prevent the counting of the electoral college votes for Abraham Lincoln and keep the newly elected President from being inaugurated. Exactly the same thing that Trump did. A few months later the war broke out, and John Floyd was an officer in the Confederate army. Section 3 evolved from there.
And again, I must repeat that the justices are being disingenuous when they say that Colorado is deciding for the entire country. The USSC will decide for the entire country if they go to the merits of the case. Let’s say that another state, for example, Texas, did the exact same thing as Colorado but decided the opposite. What would happen? The two cases get appealed to the USSC and the USSC decides which one is correct and that’s the end of it. The USSC ruling defines this for the whole country. The mere fact that members of the 1868 Congress had to be reassured that Jefferson Davis could never be elected President in spite of how popular he was, in spite of thwarting the desire of hundreds of thousands of voters to elect him, means without a doubt that Section 3 was designed to restrict who the voters are allowed to vote for in spite of popularity. Oath breaking insurrectionists are not allowed to hold elected office under the 14th Amendment of the Constitution. If different states disagree on who this applies to, the USSC must decide, and they must decide without fear or favor. The disqualification exists as a factual matter defined by the words of Section 3 without any particular proscribed procedure. Section 3 specifically allows Congress to remove this disability by a 2/3 vote of each chamber. How can they remove a disability if it doesn’t already exist?
My argument for due process is not only a good one, it’s the best one. I get it from the briefs of legal experts in Constitutional law. You should read them. Trump’s arguments are so weak even his lawyer was embarrassed to make them. Does it make sense to you that the most important person in our government, the President, could be an oath breaking insurrectionist and be the ONLY PERSON EXEMPT from Section 3? Does it make sense that Section 3 would prohibit an oath breaking insurrectionist from holding office but not running for office? That the ultimate decision must be put off until after the election? That you wait until the oath breaking insurrectionist has won the election and THEN you cancel the citizens votes?
Going to the merits here is not just the job of the USSC, it is their DUTY. Just because it’s difficult and controversial doesn’t mean they get to run away from it. There is a ton of quotes from various people involved in the drafting and implementing of Section 3, direct quotes, that the intention was for Section 3 to protect the country from elected officials sabotaging the constitution and constitutional procedure then “and into the future, for all time”. If you don’t believe me, read the briefs. The justices need to read the briefs too.
Timothy,
Your take on how arguments went today?
You are of course correct in all that you wrote. However, I should point out that there will be utter chaos if he is disqualified. If Biden beats Trump fair and square, the country has spoken. But disqualifying him will create doubts, uncertianties, chaos and the MAGA followers will double down and claiom political motivation and cheating. To get rid of Trump, it has to come down to the ballot box.
Biden won "fair and square" in 2020, with 100% of the legal challenges defeated, and what has that gotten us? How many times does the country have to speak to end the chaos that already is happening? Trump's supporters are like a religious sect: Never to respond to truth or reason.
True. But what do you suggest? On a big picture basis, Trump's supporters are not going away. Have you thought why they are using Trump to express their grievances? How should one address their underlying grievances, instead of simply talking them away as a "sect". If this country has to move forward, we have to listen to what is happening to the "rise of the Rest" as Farid Zakaria terms these "left behind" in technological change.
One thing the Democrats and Progressives could do is stop pursuing stuff like CRT and DEI, and especially stop having it infiltrate the K-12 school system to the extent that it negatively impacts the quality of children’s education. And I’m not talking about “telling the truth about history”. I’m talking about encouraging racial group identities in kindergartners, lousy methods of teaching reading and math (see California) and ridiculous “training” sessions in the workplace, DEI statements that must be included in job applications for teaching positions in post secondary education, and yes, forgiveness of student loans. I would guess that roughly half of MAGA voters didn’t even go to college, and a sizable number of the other half went but didn’t graduate. It wouldn’t surprise me if the rest of them went to college and either worked their way through and/or paid off their student loans. From their POV, loan cancellation only serves to benefit people who are not them and have wasted 4 years of their life getting a degree for which there are either no jobs or jobs that don’t pay enough to service the loans. All of these things make MAGA voters super angry and when Progressives look down on them for it, criticize them and call them stupid, racist, or more…well that’s what Trump feeds on. It’s that anger that makes Trump their “retribution” and Progressives ignore it and denigrate it to their peril.
Yeah. We have to keep doing it.
What has it gotten us? A Biden administration. Well worth the effort.
The guy who thinks that Mitterrand is still the President of France, and that Helmut Kohl is still the head of Germany? I voted for him, and I will vote for him to stop Trump, but I think we need to have a serious conversation about replacing him for this election. If Biden gets any worse between now and November, even people who hate Trump will vote for him, just to avoid having a publicly senile old man who looks like a walking cadaver be the President.
So you think VP Harris is a throw away? I don’t! I believe that POTUS is bringing her along with him and that, should he fail, she is quite capable of serving.
Then the future of our Constitutional Democracy will be thrown to the wind. Is it or is it not the law of the land? If we defend the Constitution we may have a minority who create chaos, but so be it. We have already prosecuted and jailed many insurrectionists. We may need to continue until the rest realize that there are more constructive ways to engage in civil discourse.
I am not going to disagree as I fundamentally agree with you. However, let us try and win at the ballot box to silence all the Trumpists. And, as Ed Luce has pointed out ("The Retreat of Western Liberalism") Trump is a symptom of a deep malaise in the country, of which he is taking advantage. For the future, we need to tackle that -- I won't go into Ed Luce's thesis here.
Today this was published:
Gerard Magliocca: “The Electoral Count Reform Act and Section 3”
February 15, 2024, 7:11 am Supreme Court , guest post from Rick Hasen
https://electionlawblog.org/?p=141452
connects important dots, provides opportunity for thinking through alternative outcomes
this is just to think out loud, not a finished effort, with everyone present:
This and other articles to which I have pointed, by way of wanting to understand others' perspectives and to obtain a conscious rational foot-hold on these distinctly different understandings. Each reveals a sincere grasp of fact and law which together form a sort of conscious coherence, but which consciously depend on distinct sets of assumptions about prudent interests and prudent outcomes.
Does this seem to imply that having the Constitution does not also mean having only one political society with only one set of laws and political norms? It would seem so. Prof Snyder has addressed this circumstance in essays that look at 'self-understanding' and ethical or value systems in the context of which social and political normative standards and institutional forms are legitimated.
My own sense of reasoned commitment is with the views that Prof Snyder presents, supported as these views are by William Baude and Michael Stokes Paulsen, "The Sweep and Force of Section Three," University of Pennsylvania Law Review, 14 August 2023 article on Sec 3 and by the historical events context to which Prof Snyder (and others, see "Trump v. Anderson: Writings on Section 3 of the Fourteenth Amendment" ) points that present both US domestic and other nation's experiences during the emergence of political movements and leaders that 'corrode' and undermine democratic constitutional systems. Especially relevant to me in RE the latter corrosive effects are:
"Brief of Experts on Democracy" (Ruth Ben-Ghiat, Sheri Berman, Larry Diamond, Rachel Kleinfeld, Steven Levitsky, Timothy Snyder), 30 January 2024;
"Brief of American Historians," 29 January 2024.
To these I would, again, point to Alan Guelzo's history, Fateful Lightning: A New History of the Civil War and Reconstruction (Oxford U Press, 2012).
14.3 is a prudent constitutional approach to an historically real threat to constitutional governance.
Trump's brand of political choice, which is corrosive to both the Constitution and rule of law, culminated in his choices to reject the Constitution in RE constitutionally legal electoral process and outcome and in RE promoting violent interference in the formal, constitutional legitimizing of the electoral process and outcome to enable orderly political transition. He brings 14.3 disqualification on himself.
In his “The Electoral Count Reform Act and Section 3”, Magliocca explains that two situations may combine to confuse the making of a ruling:
absence of comprehensive understanding by some Justices of the Supreme Court of the Electoral Count Reform Act of 2022 (“ECRA”);
and, consequences of the fact that "...ECRA did not create an independent cause of action".
Magliocca explains, "...the danger is that the Court may be unaware that there is even a problem because the details of the ECRA were not presented to them in any of the briefs" and "...In Trump, though, the Supreme Court may hold that states are barred from providing a cause of action to enforce Section Three. And there is no federal cause of action to enforce Section Three. This would mean that an “aggrieved” candidate could not invoke the ECRA judicial process for a Section Three claim and could only go to the Joint Session of Congress. The judicial review provision would be stymied, and chaos could result" and " there may be a meaningful difference for ECRA purposes between a holding in Trump that Congress must provide a cause of action to enforce Section Three against presidential candidates versus a holding that says that Congress need only authorize such Section Three enforcement".
The upshot, the event of "...a Trump victory in November will lead to a constitutional crisis culminating—ironically enough—in a challenge raised before the Joint Session of Congress that counts the electoral votes on January 6th,2025. The Electoral Count Reform Act of 2022 (“ECRA”) is national legislature that was supposed to prevent this kind of train wreck, but the interplay of the Act and the Court’s probable opinion in Trump may frustrate Congress’s intent".
I am wondering what Justice Roberts has in mind? To me, it seems some of his questions and observations have an indirect or distracted tone.
I'm thinking with the help of an appraisal in the Guardian some months ago: https://www.theguardian.com/us-news/2023/jun/10/john-roberts-us-supreme-court-voting-rights-decision
An excerpt: "...the one common factor that united the voting rights decisions produced by the Roberts court has been their striking willingness to rewrite the text of one of the most celebrated laws ever to be passed by Congress."
In Trump v Anderson, we are confronted by another issue; I'm clear on that. I will continue thinking through what it is here that isn't being made explicit. How does Justice Roberts see Trump v Anderson in the context of the character of democratic American civil society both under the Constitution and within government by the States?
Also note the LLI look at Trump v Anderson: https://www.law.cornell.edu/supct/cert/23-719
LII Supreme Court Bulletin, Trump v. Anderson
PS
An additional important appraisal of Roberts' views and concerns about them is provided at:
https://civilrights.org/resource/the-nomination-of-john-g-roberts-jr-to-the-supreme-court-2/#
excerpts:
"Before the full Senate considers acting on the nomination of Judge Roberts, the American people have a right to know precisely how his appointment to the Supreme Court would impact their rights, their freedoms and their lives. "
and
"Judge Roberts’ expansive view of administrative power to suspend fundamental due process protections ...raises serious questions not only about Judge Roberts’ views on the separation of powers but also on basic principles of civil and human rights."
and
"
LCCR urges the Committee to carefully question Judge Roberts on whether he would respect precedent on matters of well-settled law, such as Brown v. Board of Education,10 Miranda v. Arizona,11 Plyler v. Doe,12 Baker v. Carr,13 Roe v. Wade,14 Lemon v. Kurtzman,15 Swann v. Charlotte-Mecklenburg Board of Education,16 Engel v. Vitale 17 and National Labor Relations Board v. Jones & Laughlin Steel Corporation.18 Our nation simply cannot afford to return to a pre-1930s interpretation of the U.S. Constitution or the rights and liberties that it guarantees.
The stakes could not be higher. The Supreme Court is closely divided on cases involving some of our most basic rights and freedoms. The American people want and deserve to know that any new Supreme Court justice will be committed to protecting individual rights, and will put our freedoms ahead of any political agenda."
Of course, there is now much and troubling history. At this moment, however, as does Sec 3, we must publicly look ahead and make more than adequate preparations for those who, from within, would commandeer interpretation of interpretation of the Constitution. Partisanship and personal prejudice are not reasoned bases for conducting government under the Constitution. Instead, we the people can and would be better off inclusively to now reframe this debate on Sec 3 to point to its very limited but effective function, while expanding our understanding of the distributed, balanced reasoned approach to democratic self-understanding and necessary legislation to expand conscious cooperation and to avoid by careful management significant disagreements of understanding and choices of action.
I would be grateful for your observations and questions.
to my own above, add
While I am not fully supportive of each of his conclusions nor of each of his assumptions, and I will contact him to better understand these, please also note the analysis at: https://verdict.justia.com/2024/02/13/the-supreme-courts-oral-argument-in-trump-v-anderson
excerpt: "Particularly troubling were many of the questions posed by the Justices about the effects that the decision of the Colorado Supreme Court, if allowed to stand, would have on other states. I am not suggesting that such effects on interstate federalism are “consequentialist” in the sense that the Court cannot properly take them into account in deciding and implementing constitutional first principles; instead I am arguing that the Court’s apparent impression of the potentially harmful effects itself reflects failure to deeply appreciate the basic constitutional structure surrounding presidential selection."
and
"If the U.S. Supreme Court doesn’t firmly understand this basic starting point—that the electoral college framework the Constitution sets up confers incredibly broad and decentralized powers on each state—then I fear for the quality of the opinions that Trump v. Anderson might generate. The Court’s manipulation of the meaning of Section Three can’t address the basic reality that states can (and ultimately will) do whatever they want as long as we have an electoral college model for picking Presidents, something on which our originalist Constitution is (for better or worse) quite clear."
So, here it is Feb 12 2024.
Thanks again to Prof Snyder for providing so many tools for informed and reasoned appraisal of the events and the historical and constitutional context.
Are the Justices in need of improving context? Can this be also done in American public awareness? Is this a question that might facilitate the many political efforts to finally begin to turn most Americans toward using constitutional approaches to democratic politics, facilitating cooperation and managing differences?
The Justices are putting us all at risk if the current political divisiveness and tendencies toward factional violence and confrontation are not given an explicit place in their considers. It is not a secret that the prudent efforts to put into the Constitution the Fourteenth Amendment were firmly grounded in an explicit recognition of abiding, dangerous divisions and violent potential turns in confrontations.
In the case of former Pres Trump and of supporters of his who continue to publicly explicitly deny the legitimacy of the 2020 elections results and deny the intent of the violent occupation of the US Capitol on Jan 06 2021, can any American make a case with which the Justices would concur that it is both factual- and constitutionally sound-thinking to ignore see Sec 3 as a prudent and necessary self-effecting tool? Former Pres Trump and his supporters are not affirming the priority of the Constitution as the political and governance tool and statement of understanding of federal separation of functioning powers (or, better of functioning inter-related reasoned political agencies). The Justices must affirm and make explicit that the Constitution is this and that it is this that is at risk, it is this risk that Sec 3 clearly and properly addresses.
Trump and his supporters present us with a 'guilty until accused' situation. That presentment is an explicit attempt to game the federal system and the tensions, along with means of promoting cooperation and reasoned management of governance relations between States as governments and the US government. Of course the people of any and all States have an interest in the full maintenance and functional use of the Constitution to effect reasoned democratic governance. In the face of violent, organized effort promoted by the then elected and sitting President and explicitly aimed at subverting and replacing constitutional authority and procedure by which elected officials transition into office and out of office, Sec 3 provides focused means for governmental, not factional, not arbitrary, constitutional governance defense from within those offices and official capacities to protect and use the Constitution for preparing for and doing elections.
I am grateful to Prof Snyder and others who make as clear and as reasoned from fact and historical experience as it can be clear that "we can have the Constitution or we can have Trump", in this case by means of effecting Sec 3
It is not that I don’t believe you, Ann. You make as good a case as anyone could. I simply disagree.
And while you are correct that you are a lawyer and I am not - foolish for me to try to out-lawyer you here!- I am an academic scientist, and thus I know a thing or two about evidence. In medicine, you can make very elaborate cases for a given belief - and cite tons of literature in top tier journals. Have tons of key opinion leaders on your side- AND STILL BE WRONG. Often it is time…better evidence, Inconsistencies that cannot be resolved… which point to an entire set of beliefs to be wrong.
It teaches you humility, a decade or longer in medicine (or any other science, for that matter). As the saying goes: “There are only two types of doctors. Those who say they could be wrong - and those who have not realized that yet.”
The same applies here. Our SCOTUS justices are grappling with a very real dilemma. You bring up very valid points, but so does the other side.
The three dissenting (Dem appointed) justices in Colorado and our three Dem appointed SCOTUS judges, all with tons of highly ambitious and enormously resourceful clerks who desperately want Trump to be barred, have of course read all the amicus briefs. And unlike me, they understand exactly how to interpret every single legal argument. AND YET THEY DISAGREE.
That is my larger point.
If you want to walk away from this ruling believing that not just 6 conservative SCOTUS judges but also the 3 liberal judges are all corrupt and/or inept and/or intimidated-bullied, then Good Luck! Makes for a very dark view of our judiciary.
I think it is prudent -no, wise- for SCOTUS to punt on this. 100 years from now people will look back and recognize this: A court pushing a deeply political question back to the political realm.
Now, could this mean that, as a consequence, Trump gets elected and we see a modern repeat of Germany after 1933? Yes, and it is terrifying. I am of German heritage - nothing worries me more.
But SCOTUS believes that Congress and, ultimately, the voters need to settle this - and I think they are wise to do so.
Didn't we already choose Joe Biden over DJT? It seems like we had a big election in 2020, and Joe won!