Orange Duce

[njbill]

Hard cases make bad law.

Seacoaster will tell you that I invented that expression.

[dislaxxic]

All in all, I thought that was a very dissatisfying and bordering on intellectually dishonest oral argument.

Yep. Patently clear to this non-lawyer that every Justice who I heard speak was looking for a way out, and had no interest in law.

Trump will go on the ballot, which is a good outcome, imho....but geez, the law says otherwise.

Agree. I'm thinking they will somehow reach guidance that says, in effect "Congress needs to come up with more clear procedure concerning a disqualification under Section 3."

IMO, it needs to be made VERY clear how it needs to happen. The End needs a Means.

On to Immunity.

..

[MDlaxfan76]

Clarence starts the questioning with the first bail out argument. Nice. Predictable.

The Chief cues up another dodgeball argument.

The crazy thing is that Thomas hasn't recused...after all, his wife was urging the insurrection directly into the Oval Office...

But it doesn't matter to the basic outcome which is undoubtedly reversal on at least one narrow ground.

That said, he could write a diatribe about how it wasn't an insurrection...not sure any others actually agree with that view! Certainly they don't want to touch it.

I think the likeliest narrow aspect will have something to do with the national aspects as that appears to resonate with the liberals as well. Of course, it's a ohh-so convenient 'F-state's right' hypocrisy from the 'conservative' justices, but here we are.

I was persuaded by Colorado's argument that, though it may require further adjudication, some actual work by SCOTUS, the decision of any State could be elevated to SCOTUS for reasonableness of the record and compliance with the Constitution should there be differing views by state....for instance, the scenario of red states calling something a Dem does "insurrection"...well, they'd need to present the basis, was there adequate due process etc? And frivolous cases would get tossed/reversed. Reasonable ones with adequate due process would stand. Again, I was persuaded that SCOTUS could adopt a pretty clear definition of insurrection as the Colorado attorney suggested that would incorporate Trump and this group effort to prevent the transfer of power, including through violence but not simply someone doing their job lawfully.

But I don't think the justices will land on doing more work like that.

Note, Trump's case hasn't really challenged that the record was adequate due process.

[Kismet]

All in all, I thought that was a very dissatisfying and bordering on intellectually dishonest oral argument.

Yep. Patently clear to this non-lawyer that every Justice who I heard speak was looking for a way out, and had no interest in law.

Trump will go on the ballot, which is a good outcome, imho....but geez, the law says otherwise.

Agree. I'm thinking they will somehow reach guidance that says, in effect "Congress needs to come up with more clear procedure concerning a disqualification under Section 3."

IMO, it needs to be made VERY clear how it needs to happen. The End needs a Means.

On to Immunity.

..

Congress cannot manage a vote or do much of anything right now or for the foreseeable future so punting it all to them is essentially agreeing to do NOTHING.

[dislaxxic]

It sure does seem that at the end of the day, there will have to be a reckoning about what specifically, technically, constitutes insurrection. It has been noted that he hasn't been formally adjudicated an insurrectionist at the federal level...however, in the J6 case, the charge COULD be added, just like some or all of his currently unindicted co-conspirators could be eventually indicted...does that sound right?

Then, based on today's arguments, if he gets elected, might someone THEN seek to apply Section 3 to him in office? He'd then be "holding" the office...

Yeeesh...

..

[old salt]

Uh, guys: right now, today, most individual States get to draw how Congressional districts are put together....and Gerrymand to their heart's content. Therefore, individual States RIGHT NOW get to decide the balance of power in the House..,"a single state ha(s) the ability to make this determination not only for their own citizens but also for the nation".

FFS, you're lawyers. How do you not know this? These are brilliant legal minds?

Berman and Kagan seem to think that the Federal Government draws Congressional districts . Nope. Wake up, Justices.

They are brilliant enough to realize that a gerrymandered district elects just 1 representative for the voters of that district, not the entire nation.
A distinction which you are apparently not brilliant enough to recognize. One size fits all "logic".

[Typical Lax Dad]

Uh, guys: right now, today, most individual States get to draw how Congressional districts are put together....and Gerrymand to their heart's content. Therefore, individual States RIGHT NOW get to decide the balance of power in the House..,"a single state ha(s) the ability to make this determination not only for their own citizens but also for the nation".

FFS, you're lawyers. How do you not know this? These are brilliant legal minds?

Berman and Kagan seem to think that the Federal Government draws Congressional districts . Nope. Wake up, Justices.

They are brilliant enough to realize that a gerrymandered district elects just 1 representative for the voters of that district, not the entire nation.
A distinction which you are apparently not brilliant enough to recognize. One size fits all "logic".

One State doesn’t elect a President, by your logic.

[Seacoaster(1)]

Hard cases make bad law.

Seacoaster will tell you that I invented that expression.

First time I ever heard this was when Bill said it. For sure.

[a fan]

Uh, guys: right now, today, most individual States get to draw how Congressional districts are put together....and Gerrymand to their heart's content. Therefore, individual States RIGHT NOW get to decide the balance of power in the House..,"a single state ha(s) the ability to make this determination not only for their own citizens but also for the nation".

FFS, you're lawyers. How do you not know this? These are brilliant legal minds?

Berman and Kagan seem to think that the Federal Government draws Congressional districts . Nope. Wake up, Justices.

They are brilliant enough to realize that a gerrymandered district elects just 1 representative for the voters of that district, not the entire nation.
A distinction which you are apparently not brilliant enough to recognize. One size fits all "logic".

Right. It doesn't matter who is put into Congress from the 43 States that allow gerrymandering. How many House reps come from those 43 States, OS?

Hint: the number is bigger than the "one" you are claming above.

Nothing would make me happier than for the SCOTUS to not be sharp enough to see this, and bring out a decision that lets citizens sue gerrymandering States under this idea they're floating that "you can't let States decide rules for National elections". Then the Feds step in, end gerrymandering, and your party circles the drain.

Works for me.

[a fan]

Uh, guys: right now, today, most individual States get to draw how Congressional districts are put together....and Gerrymand to their heart's content. Therefore, individual States RIGHT NOW get to decide the balance of power in the House..,"a single state ha(s) the ability to make this determination not only for their own citizens but also for the nation".

FFS, you're lawyers. How do you not know this? These are brilliant legal minds?

Berman and Kagan seem to think that the Federal Government draws Congressional districts . Nope. Wake up, Justices.

They are brilliant enough to realize that a gerrymandered district elects just 1 representative for the voters of that district, not the entire nation.
A distinction which you are apparently not brilliant enough to recognize. One size fits all "logic".

One State doesn’t elect a President, by your logic.

Don't bog him down with details, TLD.

[wayfarer]

I'm not a lawyer and don't understand why this issue is being adjudicated outside of the Colorado Republican Party. Isn't Colorado republicans' primary? Is yes, then up to them whether to put up a candidate who may be disqualified by a vote of Congress after election, no? If there is a question of supremacy, shouldn't it be between state of Colorado and Republican Party/RNC?

Again, I'm not a lawyer, but RNC has no explicit standing within the Constitution, which - BTW - did not anticipate, nor sanctifies political parties of any stripe. Or am I wrong about that?

More related questions for the legal minds here:
What are state and Federal interests in determining who can be considered in a primary election? Does exclusion from a primary disqualify a candidate from being elected in a general election? Isn't primary contest just to see who will get the weight of a party machine behind them for the general election? Why should Supreme Court touch this at all?'

I baffled why CO republicans aren't empowered to make this call for themselves. The other 49 states' republicans are free to decide differently after their respective, sober assessment of Trump's culpability as an insurrection instigator/supporter. If they all land on putting Trump on their ballots, there would be PLENTY of electoral votes in play for Trump to win the election.

If he does win election, why couldn't 14th amendment remedy play out exactly as it did for Confederates elected to House and Senate after the Civil War? What was process in those cases for raising the need for 2/3 vote of Congress to put someone in office?

I'm imagining scenario where:
1. Trump wins general election in spite of being excluded from ballots in CO and ME.
2. Trump loses Federal Jan 6 case after finding that he is not immune from prosecution (current status - lost immunity appeal and pending consideration by Supreme Court)
AND/OR
Trump loses Georgia racketeering case on election interference

EITHER of these losses would brand him disqualified to be president because he both:
(A) "previously [took] an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States"
AND
(B) will have been found criminally liable for having "engaged in insurrection or rebellion against the [US Constitution], or given aid or comfort to the enemies thereof."

3. Congress holds vote on 14A(3) remedy prior to Electoral College. Trump disqualification stands because Congress isn't 2/3 Republicans who can't think of anyone else to be their standard-bearer...

What recourse does Electoral College have at this point when they meet 1 month after the election? US Constitution says president is elected by the States. Colorado and Maine will vote for Biden anyway but - if not - their reps to Electoral College do what they would have done regardless. What do other states' electoral college people do if their state voted for Trump?

[dislaxxic]

Katyal being very critical of Colorado's overall presentation this morning...saying they should have focused the hearing more on the fact that there was a FACTUAL finding of insurrection, by Fat Duce, made by the Colorado trial court and that they where just attempting to apply the clear language of the Constitution to that factual situation. He lamented that the conversation turned much more to the "democracy" conversation about "one state getting to decide the election", etc...which the whole shebang is definitely NOT all about. Yes, there is a mechanism to determine...the how, when and by whom does Section 3 get implemented, but while Trump may win this battle regarding implementation, the fact remains that he most clearly participated in, LED even, an insurrection...and thus, Section 3 may very well, down the road, be applied to the Dear Lardo.

So, while you just hate to see anything that resembles a win for Mar-A-Lardo, this is not that, so much. Yes, there needs to be a more clear mechanism to do this. SCOTUS would not - no way, no how - conclude on THIS petition, that there is an insurrectionist in our midst...they wouldn't get out the 10-foot pole on that question. They will likely will leave Trump on the ballot...and limit their ruling(s) here.

But this shirtstorm is moving quickly and will, no doubt, pick up MUCH more speed on it's way to November 5th...

..

[Kismet]

I'm not a lawyer and don't understand why this issue is being adjudicated outside of the Colorado Republican Party. Isn't Colorado republicans' primary? Is yes, then up to them whether to put up a candidate who may be disqualified by a vote of Congress after election, no? If there is a question of supremacy, shouldn't it be between state of Colorado and Republican Party/RNC?

Again, I'm not a lawyer, but RNC has no explicit standing within the Constitution, which - BTW - did not anticipate, nor sanctifies political parties of any stripe. Or am I wrong about that?

More related questions for the legal minds here:
What are state and Federal interests in determining who can be considered in a primary election? Does exclusion from a primary disqualify a candidate from being elected in a general election? Isn't primary contest just to see who will get the weight of a party machine behind them for the general election? Why should Supreme Court touch this at all?'

I baffled why CO republicans aren't empowered to make this call for themselves. The other 49 states' republicans are free to decide differently after their respective, sober assessment of Trump's culpability as an insurrection instigator/supporter. If they all land on putting Trump on their ballots, there would be PLENTY of electoral votes in play for Trump to win the election.

If he does win election, why couldn't 14th amendment remedy play out exactly as it did for Confederates elected to House and Senate after the Civil War? What was process in those cases for raising the need for 2/3 vote of Congress to put someone in office?

I'm imagining scenario where:
1. Trump wins general election in spite of being excluded from ballots in CO and ME.
2. Trump loses Federal Jan 6 case after finding that he is not immune from prosecution (current status - lost immunity appeal and pending consideration by Supreme Court)
AND/OR
Trump loses Georgia racketeering case on election interference

EITHER of these losses would brand him disqualified to be president because he both:
(A) "previously [took] an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States"
AND
(B) will have been found criminally liable for having "engaged in insurrection or rebellion against the [US Constitution], or given aid or comfort to the enemies thereof."

3. Congress holds vote on 14A(3) remedy prior to Electoral College. Trump disqualification stands because Congress isn't 2/3 Republicans who can't think of anyone else to be their standard-bearer...

What recourse does Electoral College have at this point when they meet 1 month after the election? US Constitution says president is elected by the States. Colorado and Maine will vote for Biden anyway but - if not - their reps to Electoral College do what they would have done regardless. What do other states' electoral college people do if their state voted for Trump?

The initial action was brought to the state court by members of the REPUBLICAN PARTY.

[ggait]

This case never should have been filed in the first place.

The plaintiff's lawyers here in Colorado and elsewhere are so smart that they don't know shirt about fork. The issue in this case should never have progressed beyond a water cooler conversation in the law school faculty lounge.

First, it was doomed to lose. As we saw today.

Second, even if the case could be won, it would make absolutely no difference. Since Trump would only get booted from the ballot in blue states that wouldn't provide Trump any electoral votes anyway.

Third, it allows the MAGAs to claim, correctly, that the Dems are rigging the election. Since this is exactly what election rigging would look like.

Completely counter-productive dumb assery by a bunch of too-smart-by-half ivory tower legal d-bags. A pox on all of them.

Gov. Newsome had it exactly correct months ago -- you have to defeat Trump at the ballot box. No effort to take Trump off the CA ballot -- and rightly so. Now that these d-bag lawyers have gotten whack-a-moled, how about they do something useful instead of burnishing their virtue signaling resumes with MSNBC appearances.

How about they STFU and stop wasting everyone's time in stupid ways. And then go get some swing state voters registered! Sheesh!!!!

[ggait]

.

[jhu72]

All in all, I thought that was a very dissatisfying and bordering on intellectually dishonest oral argument.

Yep. Patently clear to this non-lawyer that every Justice who I heard speak was looking for a way out, and had no interest in law.

Trump will go on the ballot, which is a good outcome, imho....but geez, the law says otherwise.

Agree. I'm thinking they will somehow reach guidance that says, in effect "Congress needs to come up with more clear procedure concerning a disqualification under Section 3."

IMO, it needs to be made VERY clear how it needs to happen. The End needs a Means.

On to Immunity.

..

... congratulations. This is the most intelligent comment I have seen surrounding this issue. The constitution is a horribly written document, a real POS to try to run a country on. Procedural issues sticking out like giant boogers all over the damn thing. I have my doubts the Supremes will provide direction to congress, because this incarnation of the SC is the dumbest and most cowardly in my lifetime. They can't get into any trouble by keeping the rest of us guessing.

[wayfarer]

Response to Kismet...
I understand who Plaintiffs were. Constitution says its each state's call as to how to run their elections. Each engages/endorses party stupidity to different degrees. I.e., some states only allow you to vote in primary of party that you're registered in, some allow ranked choice, some make primaries open to all, blah blah blah
This dispute was between some Republicans and CO Republican Party. I guess Colorado court gets involved because Colorado has integrated party system into its election law. With that integration came scrutiny of candidate qualifications to guard State's interest in sending their electoral college reps off with a valid candidate choice. They made a determination of fact that Trump is an insurrectionist and will need special approval to serve from Congress that he does not yet have.
OK. Their call. No Trump on ballots in CO.
Why does this have any bearing on other states?
If Supreme Court needs to say something about it, I guess they could clarify timing of when insurrection disqualification 'ripens'. CO fallback is to leave Trump on ballot with asterisk next to his name that factual determination is that he will likely need 2/3 vote of Congress to serve given his involvement in J6 insurrection. Or CO has right to say, 'no electoral votes from our state will go to DJT until he gets Congressional pass to serve.' Their state, their call - I don't see why this matters to any other states.

[dislaxxic]

I have my doubts the Supremes will provide direction to congress, because this incarnation of the SC is the dumbest and most cowardly in my lifetime. They can't get into any trouble by keeping the rest of us guessing.

Pithy Dahlia agrees with you and, to a lesser extent and in a bit of a different tone, with ggait:

The Supreme Court Sure Picked a Curious Moment to Embrace Humility

It is only going to be a little bit galling when the Supreme Court, in a unanimous or near-unanimous vote, determines in a few weeks that states may not disqualify insurrectionist presidents from the ballot, because doing so would unleash mayhem—or, as Donald Trump’s lawyer promises, “chaos and bedlam”—that the nation cannot afford. During oral arguments Thursday in Trump v. Anderson, the long-awaited ballot disqualification case, almost all the justices centered their worries less on text and history than on the chilling prospect of, as Chief Justice John Roberts put it, the “plain consequences” of greenlighting a regime in which “a goodly number of states will say, whoever the democratic candidate is, ‘you’re off the ballot.’” Roberts fretted that “it’ll come down to just a handful of states that are going to decide the presidential election,” as if rogue states were not currently dictating outcomes for the rest of the country already. “That,” he added “is a pretty daunting consequence.”

Call it judicial cowardice or call it long-lost judicial humility, but the consensus view among the justices was that a lack of uniformity, coherence, and certainty—as well the fear of vexatious acts and petty mischief— precluded the court from allowing the words of the 14th Amendment’s Section 3 to mean what they say. Historians have fallen over themselves to show that, yes, Section 3 bars insurrectionists from the White House, up to and including Trump. Yet the justices seemed terrified that disqualifying him from the ballot could unleash chaos in future elections.

Really? That’s the off-ramp? This Supreme Court has evinced not a scintilla of concern for the real impacts of its gun decisions, voting rights decisions, or abortion decisions on real people. The fact that the justices are suddenly profoundly worried about the consequences of this case serves as a reminder that when the real world impacts might be experienced by the justices themselves, or when they are simply too unpredictable to contemplate, it’s time to take them very seriously. When it’s literal deaths—like victims of gun violence or abortion bans—or a massive aggrandizement of judicial power—like subjecting every federal regulation or gun law to close scrutiny—well, if history demands it, so be it. But when it’s the possibility of different names on different ballots, or the court having to adjudicate what is and isn’t an insurrection, good history is irrelevant, and the need for “uniformity” rules the day.

Start with the chief justice. It could make you cry, the absolute gall of Roberts to offer up a vociferous cheer for federal and congressional power in enforcing the 14th Amendment—after making it his life’s work to dismantle the Voting Rights Act in the name of states’ “dignity.” So could energetic efforts by other conservatives, most notably Justice Brett Kavanaugh, to frame a ruling for Trump as a victory for democracy. In considering the case, Kavanaugh asserted, the court “should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide.” Enforcing Section 3 against Trump, the justice cautioned, “has the effect of disenfranchising voters to a significant degree.” Who would have thought that Kavanaugh, who spent the run-up to the 2020 election upholding voter suppression laws, would emerge as a great defender of judicial deference to democracy? Or is “democracy” only imperiled when a state is threatening to take Trump off the ballot?

This opportunistic humility reared its head again as the justices dodged and weaved their way around a fundamental factual question: Did Trump engage in insurrection on January 6 of 2021? The only admission that January 6 was in fact a “riot,” a “shameful, criminal, violent” event came from Jonathan Mitchell, Trump’s own lawyer. Otherwise, the justices conspicuously avoided discussing the attack itself, burying it under questions about standards of proof, hearsay, and whether they should be forced to watch videos from the ellipse to understand what happened that day. Justices Amy Coney Barrett and Samuel Alito were especially doubtful of the factual record compiled by the Colorado trial court. How, they asked skeptically, can we trust state courts to gather facts and adjudicate the meaning of an insurrection? Isn’t that just too tall a task for lowly state judges? The singular horror of Jan. 6 appeared to be a reason for the court not to intervene judicially, as opposed to the reason that it should.

[snip]

This is, please recall, a court that decides what should constitute clean water, vaccine policy, immigration rules, university admission policies, and every other major and minor question under the sun. It decides when states have dignity and when Congress may take that dignity away. It decides when a single court sets national policy—chaos be damned—and when uniformity matters more than a trial court’s findings of fact. If, after Thursday, the high court sees fit to rediscover judicial and institutional humility, maybe we should all welcome the development. As we argued earlier this week, the obvious next step will be to evince that same institutional humility with a summary affirmance of the U.S. Court of Appeals for the D.C. Circuit’s decision denying Donald Trump blanket immunity for the events of January 6. Absent a similarly humble ruling in that case, the liberals’ collegiality over Trump’s ballot access, their willingness to join with conservatives to strike a posture of humility, will have been pointless at best and disastrous at worst.

Throughout arguments in Anderson, the justices purported to be experts at staying in their lane and avoiding interference with the political process. The immunity case puts that pose to the test. If the court lets the D.C. Circuit decision stand—allowing Trump’s trial to move forward before November—it can claim at least a little credit for staying out of the 2024 election. Democracy, whatever that even means anymore, can have the last word. But if the court drags out the immunity case, delaying Trump’s trial beyond November, and bars states from taking him off the ballot? Well, then we’ll know where the court really stands on self-governance, humility, and all the values it suddenly rediscovered when Trump’s fate landed in its hands.

Them's some strong fightin' words, Dahlia! Bravo! You kinda take it to the liberal justices a bit here too, i LIKE it!

..

[jhu72]

I have my doubts the Supremes will provide direction to congress, because this incarnation of the SC is the dumbest and most cowardly in my lifetime. They can't get into any trouble by keeping the rest of us guessing.

Pithy Dahlia agrees with you and, to a lesser extent and in a bit of a different tone, with ggait:

The Supreme Court Sure Picked a Curious Moment to Embrace Humility

It is only going to be a little bit galling when the Supreme Court, in a unanimous or near-unanimous vote, determines in a few weeks that states may not disqualify insurrectionist presidents from the ballot, because doing so would unleash mayhem—or, as Donald Trump’s lawyer promises, “chaos and bedlam”—that the nation cannot afford. During oral arguments Thursday in Trump v. Anderson, the long-awaited ballot disqualification case, almost all the justices centered their worries less on text and history than on the chilling prospect of, as Chief Justice John Roberts put it, the “plain consequences” of greenlighting a regime in which “a goodly number of states will say, whoever the democratic candidate is, ‘you’re off the ballot.’” Roberts fretted that “it’ll come down to just a handful of states that are going to decide the presidential election,” as if rogue states were not currently dictating outcomes for the rest of the country already. “That,” he added “is a pretty daunting consequence.”

Call it judicial cowardice or call it long-lost judicial humility, but the consensus view among the justices was that a lack of uniformity, coherence, and certainty—as well the fear of vexatious acts and petty mischief— precluded the court from allowing the words of the 14th Amendment’s Section 3 to mean what they say. Historians have fallen over themselves to show that, yes, Section 3 bars insurrectionists from the White House, up to and including Trump. Yet the justices seemed terrified that disqualifying him from the ballot could unleash chaos in future elections.

Really? That’s the off-ramp? This Supreme Court has evinced not a scintilla of concern for the real impacts of its gun decisions, voting rights decisions, or abortion decisions on real people. The fact that the justices are suddenly profoundly worried about the consequences of this case serves as a reminder that when the real world impacts might be experienced by the justices themselves, or when they are simply too unpredictable to contemplate, it’s time to take them very seriously. When it’s literal deaths—like victims of gun violence or abortion bans—or a massive aggrandizement of judicial power—like subjecting every federal regulation or gun law to close scrutiny—well, if history demands it, so be it. But when it’s the possibility of different names on different ballots, or the court having to adjudicate what is and isn’t an insurrection, good history is irrelevant, and the need for “uniformity” rules the day.

Start with the chief justice. It could make you cry, the absolute gall of Roberts to offer up a vociferous cheer for federal and congressional power in enforcing the 14th Amendment—after making it his life’s work to dismantle the Voting Rights Act in the name of states’ “dignity.” So could energetic efforts by other conservatives, most notably Justice Brett Kavanaugh, to frame a ruling for Trump as a victory for democracy. In considering the case, Kavanaugh asserted, the court “should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide.” Enforcing Section 3 against Trump, the justice cautioned, “has the effect of disenfranchising voters to a significant degree.” Who would have thought that Kavanaugh, who spent the run-up to the 2020 election upholding voter suppression laws, would emerge as a great defender of judicial deference to democracy? Or is “democracy” only imperiled when a state is threatening to take Trump off the ballot?

This opportunistic humility reared its head again as the justices dodged and weaved their way around a fundamental factual question: Did Trump engage in insurrection on January 6 of 2021? The only admission that January 6 was in fact a “riot,” a “shameful, criminal, violent” event came from Jonathan Mitchell, Trump’s own lawyer. Otherwise, the justices conspicuously avoided discussing the attack itself, burying it under questions about standards of proof, hearsay, and whether they should be forced to watch videos from the ellipse to understand what happened that day. Justices Amy Coney Barrett and Samuel Alito were especially doubtful of the factual record compiled by the Colorado trial court. How, they asked skeptically, can we trust state courts to gather facts and adjudicate the meaning of an insurrection? Isn’t that just too tall a task for lowly state judges? The singular horror of Jan. 6 appeared to be a reason for the court not to intervene judicially, as opposed to the reason that it should.

[snip]

This is, please recall, a court that decides what should constitute clean water, vaccine policy, immigration rules, university admission policies, and every other major and minor question under the sun. It decides when states have dignity and when Congress may take that dignity away. It decides when a single court sets national policy—chaos be damned—and when uniformity matters more than a trial court’s findings of fact. If, after Thursday, the high court sees fit to rediscover judicial and institutional humility, maybe we should all welcome the development. As we argued earlier this week, the obvious next step will be to evince that same institutional humility with a summary affirmance of the U.S. Court of Appeals for the D.C. Circuit’s decision denying Donald Trump blanket immunity for the events of January 6. Absent a similarly humble ruling in that case, the liberals’ collegiality over Trump’s ballot access, their willingness to join with conservatives to strike a posture of humility, will have been pointless at best and disastrous at worst.

Throughout arguments in Anderson, the justices purported to be experts at staying in their lane and avoiding interference with the political process. The immunity case puts that pose to the test. If the court lets the D.C. Circuit decision stand—allowing Trump’s trial to move forward before November—it can claim at least a little credit for staying out of the 2024 election. Democracy, whatever that even means anymore, can have the last word. But if the court drags out the immunity case, delaying Trump’s trial beyond November, and bars states from taking him off the ballot? Well, then we’ll know where the court really stands on self-governance, humility, and all the values it suddenly rediscovered when Trump’s fate landed in its hands.

Them's some strong fightin' words, Dahlia! Bravo! You kinda take it to the liberal justices a bit here too, i LIKE it!

..

... they are all useless worthless monkeys (sorry to malign monkeys) that should be put down at the first opportunity! I am sick of the pretense surrounding these jackasses. Don't take this as I ever had any expectation of the Colorade case being upheld. The problems with this case are so obvious, as obvious as the problems with the monkeys themselves.

[njbill]

Great article. Very well written.

The more I cogitate over today’s argument, the more disappointed I am in all of the justices, including the liberal ones. I suspect the liberal justices fear, as was expressed by at least a couple of justices today, that if they take Trump off the ballot, states will willy-nilly take Democrats (and Republicans) off the ballot in the future. I think they are seeing a bogeyman who isn’t there.

The court expressed concerns about inconsistent results between state court decisions. The Supreme Court resolves differences between the circuit courts all the time. No reason they couldn’t do the same thing if there were inconsistent state court decisions.

If a state frivolously takes a candidate off the ballot, contending he or she engaged in an insurrection, the S Ct can define insurrection and set rules for how it is to be determined whether the candidate engaged in an insurrection. The Supreme Court can make then that call. Rarely will those be difficult cases.

The notion that state courts can’t determine who is on their own ballot is also a bunch of baloney. State courts have the right to entertain claims under federal law unless there is a statute (there is none here) expressly saying jurisdiction is reserved to the feds or if Congress has so dominated the area with legislation, etc. that it’s clear federal jurisdiction is to be exclusive. Nothing like that has occurred here.

The bogeyman about inconsistent results can just as easily occur if the case is brought in federal court. A federal court in Colorado may reach a different decision than a federal court in Alabama. The cases would then work their way up to the Supreme Court, which would decide. Easy peasy.

So, after today’s argument, where does the 14th amendment, section 3 stand? Under what circumstances would a candidate for president be disqualified? It sure sounds like the Supreme Court is going to read this section effectively out of existence. That would be really bad jurisprudence.

Today’s argument did not sink to the level of Bush v. Gore, but it came pretty close.