SCOTUS

[cradleandshoot]

So your trying to compare overturning Roe v Wade to a group of people trying to overturn the US Constitution?

You think we're gonna get a bomb-throwing-America-hatin' liberal on the SCOTUS? Who? Who are we going to get, Cradle?

They just put several righties on the Court, and they are all YOUNG, Cradle. The SCOTUS will lean right for DECADES to come, my man.

And I'm ok with that...but out of balance rulings will have some negative effects. Things like what I mentioned: women in States and their doctors choosing good, safe health care vs. jail time. Not a good outcome.

Do you have a personal issue as well with those rich white rebels who sacrificed so much to create this albeit imperfect nation to begin with? Their jurisprudence for founding this nation was just excoriated in front of your own face and it sails right over your freaking head.

I honestly don't know what you're referring to here....clarify?

I sure wish I would have had the chance to debate you back when you were in college. My memory is pretty damn good still. I remember you posting about this as far back as our other forum.

Ditto! Would have been a kick! But the post-debate beers would have been the REAL fun.

Originalism is just a method of holding us closely to the views of white slaveholders and bad, outcome determinative “historians.” That is the current SCOTUS majority.

How come you were never nominated to the SCOTUS? Your legal wisdom is sorely needed.

[Farfromgeneva]

So your trying to compare overturning Roe v Wade to a group of people trying to overturn the US Constitution?

You think we're gonna get a bomb-throwing-America-hatin' liberal on the SCOTUS? Who? Who are we going to get, Cradle?

They just put several righties on the Court, and they are all YOUNG, Cradle. The SCOTUS will lean right for DECADES to come, my man.

And I'm ok with that...but out of balance rulings will have some negative effects. Things like what I mentioned: women in States and their doctors choosing good, safe health care vs. jail time. Not a good outcome.

Do you have a personal issue as well with those rich white rebels who sacrificed so much to create this albeit imperfect nation to begin with? Their jurisprudence for founding this nation was just excoriated in front of your own face and it sails right over your freaking head.

I honestly don't know what you're referring to here....clarify?

I sure wish I would have had the chance to debate you back when you were in college. My memory is pretty damn good still. I remember you posting about this as far back as our other forum.

Ditto! Would have been a kick! But the post-debate beers would have been the REAL fun.

Originalism is just a method of holding us closely to the views of white slaveholders and bad, outcome determinative “historians.” That is the current SCOTUS majority.

How come you were never nominated to the SCOTUS? Your legal wisdom is sorely needed.

https://youtu.be/E4TiM_taMJY?si=_yOVR-nu8XGtpZoL

[jhu72]

No "new rule of thumb" WHATSOEVER.

The Hawaii ruling is notable for several reasons, not the LEAST being their methodical and so-well-reasoned takedown of the whole "strict construction" BULLSHIRT championed by wingnuts like Antonin Scalia and Sam the Sham Alito...

It’s an amazing case because the Hawaii Constitution has a provision that is the same as the Second Amendment to the U.S. Constitution. It literally uses the exact same words as the Second Amendment. And Justice Eddins said: Even though the provisions are the same, we will not interpret them the same way, because we think the U.S. Supreme Court clearly got it wrong in Heller when it said the Second Amendment creates an individual right to bear arms.

Justice Eddins then pored over the immense body of scholarship and historical research that has shown, beyond a reasonable doubt, that SCOTUS was catastrophically wrong in Heller. He even quoted this great study that refutes a centerpiece of Justice Antonin Scalia’s analysis in Heller, which was the idea that the phrase “bear arms” typically meant individual use of a weapon in 18th-century parlance. Scholars have analyzed thousands of documents from that era and proved that Scalia was just objectively wrong: The phrase “bear arms” was unfailingly used in a collective context, describing a militia—which makes sense, since the Second Amendment begins by saying its purpose is to protect the militia, not an individual right to own guns.

Then Eddins’ opinion goes on to analyze the real history of guns in Hawaii. And he says: “Never have Hawaii’s people felt that carrying deadly weapons during daily life is an acceptable or constitutionally protected activity. The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others.”

Great to see that the whiffty notion that we have to constantly read the words of 18th century white men and apply them to 21st century jurisprudence is getting the judicial analysis it so SORELY needs.

..

+1 million.

Very refreshing to see another jurist point out how wrong the Supreme Court was in Heller. Mark my words. That decision will be reversed at some point down the line. Might take 50 years (in which case I won’t be around to see it) like Roe, but it will happen. The decision is just so wrong, wrong, wrong.

+ 1 million

... don't think it will take 50 years. The court is likely to swing back very quickly because of Roe coupled with the death of the current republiCON party. Sanity will be restored.

[dislaxxic]

Supreme Court Inadvertently Reveals Confounding Late Change in Trump Ballot Ruling

The Supreme Court’s decision on Monday to keep Donald Trump on Colorado’s ballot was styled as a unanimous one without any dissents. But the metadata tells a different story. On the page, a separate opinion by the liberal justices is styled as a concurrence in the judgment, authored jointly by the trio. In the metadata of the link to the opinion posted by the court, however, this opinion is styled as an opinion concurring in part and dissenting in part, authored not by all three justices but by Sonia Sotomayor alone. Even a techphobic reader can discern this incongruity through careful copying and pasting, piercing the facade of unanimity that the conservative justices sought to present.

What happened? Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. The court, after all, scheduled the opinion’s release only one day earlier, on Sunday afternoon, evidently to hand it down before Tuesday’s Colorado primary. Moreover, the justices did not take the bench to announce the opinion, as they usually do—probably because they had not all planned to be in D.C.—further proving that it was a last-minute release. The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?

We cannot know with any real certainty. We may never. But we can certainly speculate!

First, a recap: The Supreme Court ruled that an individual state may not disqualify a presidential candidate from the ballot under Section 3 of the 14th Amendment, which bars insurrectionists from regaining public office. All nine justices agreed with this bottom line. Five justices went further, however, declaring that only Congress may enforce Section 3 against federal candidates. In a brief opinion, Justice Amy Coney Barrett said the court should not have reached this broader question about congressional authority. Sotomayor made the same point in a longer, more acerbic opinion joined by Justices Elena Kagan and Ketanji Brown Jackson. Her opinion was styled as a concurrence, but we now know that it was actually, probably until late in the drafting process, labeled a dissent. We also know that the opinion was originally ascribed only to Sotomayor.

Now the speculation: We can guess that the bulk of this opinion was authored by Sotomayor herself. It bears some of the justice’s trademarks, including a realpolitik assessment of the majority’s handiwork and stormy rhetoric about its consequences for democracy. In addition, during oral arguments last month, Sotomayor sounded the most skeptical of Trump and his various legal theories. Perhaps, after arguments, the court convened to vote on the case, and a majority settled on a sweeping rationale in Trump’s favor. Sotomayor then moved forward with a dissent faulting the majority’s overreach. At some point, that dissent turned into the opinion “concurring in the judgment” that we saw on Monday.

Which leads to a second question: Why did a stand-alone Sotomayor dissent transform into a three-justice concurrence? Here, the most rational intuition is that Kagan and Jackson were keeping their votes fluid in the hopes of striking a bargain to avert a gratuitously broad opinion effectively repealing the insurrection clause. This bargain may have been simple; the two justices might have joined with Barrett to seek a fifth vote for a narrow holding, presumably from Roberts. All the while, Sotomayor worked on the fallback option: a partial dissent chastising the majority’s overreach. When Kagan and Jackson realized they couldn’t nab a fifth vote for the narrow position, they teamed up with Sotomayor, making a few changes and signing their names as authors in a show of force and agreement within the progressive bloc. (The description of presidential elections as “a great and glorious thing,” for example, sounds like the work of Kagan or Jackson, not Sotomayor.)

Broaden the scope of the potential negotiations, though, and things get more interesting. After oral arguments, many smart court watchers mused that the justices might reach a grand bargain that tied this case to a separate dispute involving Trump’s claim of immunity from criminal prosecution for election subversion. The liberal justices might agree to keep Trump on the ballot if the court also refused to take up the immunity case. There would be an exchange of votes: Trump stays on the ballot but gets no immunity from prosecution. He could run in all 50 states but would also have to contend with a criminal trial that would likely conclude before the election.

That, of course, didn’t happen: The court sided with Trump on the ballot issue and took up his immunity case last week on a less-than-speedy timeline, helping him run out the clock to November. But maybe Kagan and Jackson were working behind the scenes to strike this grand bargain. Maybe they were withholding their votes in both cases, scrambling to find two conservative justices who would rule narrowly for Trump in one case and swiftly against him in the other. If so, that didn’t happen. But it would still make sense for Kagan and Jackson to withhold their votes in both cases until they got confirmation that no compromise lay on the horizon in either dispute.

Then there is the least interesting possibility: that Sotomayor’s opinion was going to be a partial dissent until Roberts and Barrett prevailed upon her to call it a concurrence—in a bid to look unanimous and “turn the national temperature down” (in Barrett’s words). It’s frankly difficult to see Sotomayor, an independent-minded and principled jurist, buying into this stratagem if she got nothing out of it. And this theory doesn’t explain why the other two liberals signed on as authors apparently so late in the game.

But there is always another bargain to seek, another compromise to pursue. Who knows what these three justices might have received in exchange for removing the word dissent from this opinion. Maybe they needed to call the opinion a concurrence to wrench a separate opinion out of Barrett, one she might not have offered otherwise, criticizing the majority. Barrett strived to frame the outcome as a reflection of friendly unanimity; perhaps she threatened to paper over her disagreement unless the liberals dropped the word dissent to keep up the facade of cross-ideological agreement. Or maybe Barrett was on the fence about whether to grant Trump a full stay in his immunity case and push the case onto next term’s docket, instead of hearing it on a marginally expedited basis this term. If so, perhaps the “concurrence” language was the price of her vote there. Whatever the liberals were able, or not, to eke out of the conservative justices, it appears to have been thin gruel indeed.

Such guesswork is ultimately somewhat of a fool’s errand, but it’s irresistible when the Supreme Court leaves such a big clue dangling in the metadata. (I asked the court for comment on Monday but have not yet received a response.) Whatever happened behind the scenes, the final product is plenty fractured on its own terms. The liberal justices can call their opinion whatever they want. At the end of the day, it reads exactly like what it is: a furious and fearful dissent.

..

[dislaxxic]

There's more. These five uber-conservative AZZWIPES on the Supreme Court have actually made a pretty solid attempt to NULLIFY Section 3 of the 14th Amendment.

The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster

On Monday, the Supreme Court unanimously reversed a Colorado Supreme Court decision removing Donald Trump from the ballot because of his engagement in an insurrection on Jan. 6. But that top-line holding is where the unanimity ended because five conservative justices just couldn’t help themselves: They went much further than the case required, announcing an entirely new rule that Congress alone, through “a particular kind of legislation,” may enforce the constitutional bar on insurrectionists holding office. As the three liberal justices pointed out, in a separate opinion that glows white-hot with indignation, the majority’s overreach “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.” They are, of course, correct. After this decision, it is impossible to imagine a federal candidate, up to and including the president, ever being disqualified from assuming office because of their participation in an insurrection.

Monday’s case, Trump v. Anderson, is proof positive that the Supreme Court can act at rapid speed to resolve a dispute of national importance—at least when Trump’s own interests are under threat. The Colorado Supreme Court disqualified Trump on Dec. 19. SCOTUS took up the case on Jan. 5 and heard arguments on Feb. 8. Now, less than a month later, the justices have resolved the case in Trump’s favor. The court’s ultra-accelerated consideration of Anderson sits in sharp contrast with its treatment of Trump’s claim of absolute immunity in his criminal trial over Jan. 6, which the justices have, by comparison, slow-walked to the point that it appears unlikely the former president could face trial before November. This disparity alone may provide a clue that there is something other than law afoot in these cases.

Anyone in need of another clue can look to the majority’s unsigned opinion in Anderson shielding Trump from removal by the states. This case involved a genuinely difficult dispute: Section 3 of the 14th Amendment, enacted in the wake of the Civil War, bars former insurrectionists from reclaiming office but does not explain how this bar should operate. A group of voters urged the Colorado courts to enforce the amendment on their own, under a state law that lets voters challenge any candidate’s legal qualifications for office. The Colorado Supreme Court heeded the call and dumped Trump from the ballot. All nine justices have now agreed that states may not unilaterally disqualify a presidential candidate. Doing so, they reasoned, would allow a handful of states to effectively determine the outcome of a presidential election, undermining the inherently national nature of both the election and the presidency itself. The Constitution’s division of authority between the federal and state governments cannot permit a state’s go-it-alone effort to disqualify a federal candidate who’s running to represent the entire country.

That, however, is where the agreement ends. Five justices—Chief Justice John Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—went further: They declared that only Congress may enforce the insurrection clause against federal candidates. How, exactly? The majority says that Congress must “prescribe” specific procedures to “ascertain” when an individual is disqualified under the 14th Amendment. Such procedures, of course, do not exist today. And without them, the majority insists—in just a few paragraphs of sparse reasoning—the insurrection clause cannot be enforced against office seekers. It derives this conclusion from two primary sources: “Griffin’s Case,” an 1869 opinion written by Chief Justice Salmon Chase, acting as a circuit judge, and Section 5 of the 14th Amendment, which says, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The three liberal justices wrote a separate opinion, authored jointly, to explain why this reasoning fails. First, Griffin’s Case was, until Monday, widely discredited as the political handiwork of a chief justice plotting to run for the presidency as a great conciliator between North and South. It is “a nonprecedential, lower court opinion by a single Justice in his capacity as a circuit judge,” as the liberal justices wrote. Moreover, Sen. Lyman Trumbull, an author of the 14th Amendment, resisted the logic of Griffin’s Case, declaring that while congressional legislation might provide a “more efficient and speedy remedy” for disqualifying a candidate, it is the 14th Amendment itself that “prevents a person from holding office.”

Second, it is bizarre to claim that the insurrection clause requires enabling legislation by Congress when the remainder of the 14th Amendment—indeed, all three amendments ratified after the Civil War—is “self-executing” (meaning it does not require congressional action for enforcement). Everyone agrees that Congress need not pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement. Why, the liberals wondered, did the majority create “a special rule” for the insurrection clause alone? They added that the clause does mention congressional action, but only to say that Congress may lift a disqualification by two-thirds vote: “It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.”

These disagreements matter a great deal. As the liberals point out, the majority’s sweeping Congress-only approach “forecloses judicial enforcement” of the insurrection clause—in, for instance, the context of a criminal trial involving an insurrectionist. It also bars future enforcement on the basis of “general federal statutes” that compel “the government to comply with the law,” since the majority says any congressional enforcement must be “tailored” to the insurrection clause. And it even empowers the Supreme Court to prevent Congress from disqualifying an insurrectionist in the future, because the court can claim that any enabling legislation did not adhere to the made-up rules in Monday’s opinion. By blocking off these pathways, the liberals wrote, the majority “foreclose future efforts to disqualify a presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course.” They continued:

Section 3 serves an important, though rarely needed, role in our democracy. The American people have the power to vote for and elect candidates for national office, and that is a great and glorious thing. The men who drafted and ratified the Fourteenth Amendment, however, had witnessed an “insurrection [and] rebellion” to defend slavery. They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.

Notably, the liberals actually had Justice Amy Coney Barrett on their side too. She authored a separate opinion expressing her disapproval of the majority’s overreach but declining to say more because “the court should turn the national temperature down, not up.” So, in effect, Anderson is a 5–4 decision, with a bare majority effectively repealing the insurrection clause for federal officeholders. The liberals’ disapproving citations to Bush v. Gore and Dobbs give a sense of how disastrously they believe the majority went astray.

It should go without saying that Congress will not enact legislation enforcing Section 3. The Republican Party is about to renominate the alleged insurrectionist in this case as its candidate for the presidency in 2024. The party is complicit in the violent events of Jan. 6. It will not allow any insurrection-related laws to clear the Senate filibuster. The whole point of a written constitution is that it can protect individual rights and democracy even when the democratic process itself is corrupted or compromised. SCOTUS has backtracked from that guarantee just when American democracy needs it most.

In their incandescent opinion, the liberal justices walk right up to the line of accusing the majority of doing a special favor for Trump. They are right to do so, and they would have been justified to cross it. The majority had no reason to nullify the insurrection clause other than an obvious desire to ensure that no other federal candidates are nixed from the ballot because of their participation in Jan. 6. An optimist might say that by doing so, the majority was just trying to inject stability into the upcoming election. But close court-watchers know that every time this Supreme Court waves the flag of stability, it does so on behalf of Trump and his allies. Anderson’s bottom-line outcome is certainly defensible. But the rest of it serves as an unwarranted gift to Donald Trump and the oathbreakers who violently assisted his efforts to overturn a free and fair election.

..

[njbill]

The decision is not quite the thumb-on-the-scale ruling that Bush v. Gore was, but it’s in the same vein. The obvious purpose was to prevent a federal court from issuing a ruling essentially saying the same thing as what the Colorado courts said.

As others have noted, the holding that section 3 cannot be enforced unless Congress has specifically passed an implementing piece of legislation is clearly wrong. For one thing, no implementing legislation has been necessary to enforce other provisions of the 14th amendment. Also, it obviously can’t be what Congress intended. Both houses of Congress passed the 14th amendment by super majorities (2/3 votes). The court’s holding yesterday basically is that Congress “repealed” section 3 by failing to adopt implementing legislation. It’s nonsensical to suggest that that is what Congress intended. And, of course, Congress cannot repeal a constitutional amendment once approved by the requisite number of states.

Fortunately, this part of the court’s decision is dicta and can be ignored by a future Supreme Court, although one certainly hopes there won’t be a need for another case like this one.

Obviously, this Congress is not going to pass any legislation implementing section 3. Hopefully a future Congress will do so as they did to clean up the Electoral Count Act after January 6.

The court went way out of its way — unnecessarily so — to protect Trump in this decision. But the immensely more important decision is still to come. What on God‘s green earth are they going to do in that one to protect him?

[Seacoaster(1)]

Good article, dis, and thanks for posting it. Stern pretty much shows why, in legal reasoning, the trio opinion (and maybe ACB) is correct. With forty or fifty insurrectionists sitting in the narrowly divided Congress, this really is effective repeal of the Insurrection Clause. I do wish we could refrain from calling them "the liberal justices;" the reality is that Sotomayor's opinion -- with Kagan and Jackson -- is just good application of the words of the Constitution to the situation presented to the Court. This statement -- "It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation" -- is just freighted with disdain, by Justices who actually are simply applying the text, and who actually do abide by the maxim that the Court is supposed to do what is necessary to the result, and no more.

The Court majority seems bent on preventing the [unelected] courts from becoming entangled in the issue of the possible disqualification of federal office seekers -- at a time when a good part of the country is in thrall to an indicted accused criminal, a guy who was found by a jury to have sexually assaulted a woman, and whose "coalition" includes powerful forces of anti-democratic and discriminatory thinking, and at a time when the Congress itself is populated by folks who engaged in a conspiracy to deny the 2020 election to the party who won the popular vote and the Electoral College. Pretty sad stuff.

[dislaxxic]

njbill, I think the term may be "de facto" protection...what they are doing to affirmatively push the trial, and certainly any judgment entered, well past the election.

Could the "future court case" come when someone, somehow, sues to stop the certification of the Electoral College votes on, or prior to, the January 6th Session of Congress meant to perform such certification?

Much has been made of how Section 3 prohibits the "holding" of federal office. An attempt to prohibit an elected official from "holding" the office might give rise to such a case, no?

In any case, the "high" court has invited Jack Smith to supersede his indictment to include the incitement of insurrection.

Will he?

..

[njbill]

I think the court’s decision would prevent any court case challenging the January 6 type certification (the date won’t always be January 6, of course) or from disqualifying someone from holding office. In addition to preventing a Colorado-type challenge in federal court before the election, the decision pretty clearly would prevent those other types of challenges as well. Obviously, this Congress would not pass any legislation in enough time to authorize such challenges.

If Jack Smith can go to trial before the election, I highly doubt he would bring a superseding indictment to add a charge of insurrection. If Biden wins and the case is put off until after the election, perhaps he will.

[ggait]

Can anyone explain what Luttig and Tribe were thinking in backing this effort?

Seems like a very unserious vanity project to me.

[Kismet]

Can anyone explain what Luttig and Tribe were thinking in backing this effort?

Seems like a very unserious vanity project to me.

Some folks/talking heads want to be famous and on TV. Tribe has ALWAYS been this way - Luttig is a recent convert.

[dislaxxic]

Can anyone explain what Luttig and Tribe were thinking in backing this effort?

Seems like a very unserious vanity project to me.

Backing what effort? I've seen them talking about this, but what "project" are you questioning?

..

[ggait]

https://www.theatlantic.com/ideas/archi ... cy/675048/

Well Luttig and Tribe did strongly endorse this plan by publishing this article in the Atlantic last August. Entitled "The Constitution Prohibits Trump From Ever Being President Again." Which article was published shortly before the CO case was filed. And they pretty much loudly hopped on this band wagon after a law review article on this topic published by two Penn law professors.

Tribe, Luttig (along with George Conway's) loudly proudly declared how totally slam dunk hosed Trump was under the 14th Amendment.

Has been hilarious to watch these guys dissemble over the past couple days as reporters are now playing back to them the video of their prior preposterous statements. And they don't seem even slightly sheepish for getting so completely wrong. I guess big egos will do that to you.

Shows you how extremely smart guys can be utterly clueless when completely drunk on their own gas bag, ax grinding, virtue signaling kool aid. How this case ever progressed past a spirited theoretical discussion in the faculty lounge is beyond me.

[cradleandshoot]

https://www.theatlantic.com/ideas/archi ... cy/675048/

Well Luttig and Tribe did strongly endorse this plan by publishing this article in the Atlantic last August. Which was shortly before the CO case was filed.

Tribe, Luttig (along with George Conway's) loudly proudly declared how totally slam dunk hosed Trump was under the 14th Amendment.

Has been hilarious to watch these guys dissemble over the past couple days as reporters are now playing back to them the video of their prior statements. Doh!

Shows you how extremely smart guys can be utterly clueless when completely drunk on their own gas bag, ax grinding, virtue signaling kool aid.

I read this forum almost every day. I read everyday how extremely smart guys can be utterly clueless. No big mystery there...

[dislaxxic]

https://www.theatlantic.com/ideas/archi ... cy/675048/

Well Luttig and Tribe did strongly endorse this plan by publishing this article in the Atlantic last August. Entitled "The Constitution Prohibits Trump From Ever Being President Again." Which article was published shortly before the CO case was filed. And they pretty much loudly hopped on this band wagon after a law review article on this topic published by two Penn law professors.

Tribe, Luttig (along with George Conway's) loudly proudly declared how totally slam dunk hosed Trump was under the 14th Amendment.

Has been hilarious to watch these guys dissemble over the past couple days as reporters are now playing back to them the video of their prior preposterous statements. And they don't seem even slightly sheepish for getting so completely wrong. I guess big egos will do that to you.

Shows you how extremely smart guys can be utterly clueless when completely drunk on their own gas bag, ax grinding, virtue signaling kool aid. How this case ever progressed past a spirited theoretical discussion in the faculty lounge is beyond me.

Respectfully, i think the flaw in that article comes right at the beginning with the use of the word "automatically". I haven't read the whole Atlantic piece because of the firewall.

The text of Section 3 says what it says. What it doesn't do is set forth any clear process for executing the text, hence the current Supremes riding in and making some up on their own.

Neal Katyal lays blame for the way this has played out so far with the prosecution of the case before SCOTUS by the lawyers representing the republican voters of Colorado that brought this case, who seemed to pretty well ignore the whole "he was found to be an insurrectionist in two trials in Colorado. There was nary a peep about THAT fact during oral argument before Mitch's SCOTUS.

I don't think the issue is settled or has gone away, by any means. If and when Mar-A-Lardo is convicted of insurrection, the whole thing changes. Somehow, especially going forward from where we find ourselves today, we really CAN'T have it be AOK that verified (convicted?) insurrectionists can hold federal office, right?

Interested to know, gg, do you feel that the Supremes effectively nullified Section 3 with the Anderson ruling?

..

[ggait]

I think they did. Which is why the case should not have been pursued.

What was the point?

Trump would only get bounced off the ballot in blue states. Case was a sure loser in SCOTUS. And now you are stuck with new bad law being made.

All of which was very foreseeable. I really don’t get what they were thinking in tilting at this windmill.

[dislaxxic]

Legal opinion on "R-SCOTUS" from one of the frequent guest posters at Emptywheel

SCOTUS LINES UP BEHIND TRUMP’S DEFENSIVE STRATEGY

There is no doubt the Republicans on SCOTUS (hereinafter R-SCOTUS) are lined up behind Trump in his criminal cases. The timeline in the ridiculous immunity case and the decision in the Colorado ballot case are clear demonstrations of their commitment to his reelection despite his obvious unfitness for office.

The Colorado case

In Trump v. Anderson, all nine members of SCOTUS agreed that Colorado can not keep Trump off the ballot under the Insurrection Clause of the 14th Amendment. The per curium opinion offers several weak reasons to support this result.

Barrett and the Democratic appointees expressly dissented from the majority’s holding that only Congress can enforce the Insurrection Clause, and only with the approval of SCOTUS. The majority concludes with this:

These are not the only reasons the States lack power to enforcethis particular constitutional provision with respect to federal offices. But they are important ones, and it is the combination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular rationale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches.

Restrictions on Congressional Enforcement of the Insurrection Clause

That last quote refers to the part of the per curium opinion saying that § 5 of the 14th Amendment

… limits congressional legislation enforcing Section 3, because Section 5 is strictly “remedial.” To comply with that limitation, Congress “must tailor its legislative scheme to remedying or preventing” the specific conduct the relevant provision prohibits. Section 3, unlike other provisions of the Fourteenth Amendment, proscribes conduct of individuals. … Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruence and proportionality” between preventing or remedying that conduct “and the means adopted to that end.” Citations omitted.

The women on SCOTUS agree that this is unnecessary for the decision. It’s purely a creation of the SCOTUS men. It prescribes no standards, and it arrogates power to SCOTUS at the expense of Congress.

I note that the claim that the 14th Amendment only applies to the actions of individuals is the invention of an earlier SCOTUS, in cases like US v. Cruikshank and The Civil Rights Cases, which I discuss here and here. The Congress that drafted the 14th Amendment thought it had the power to legislate against the KKK and other violent white supremacists acting in their private capacity. For example, in Cruikshank, SCOTUS said principles of federalism mean that the 14th Amendment only applies to state action. Those early rancid decisions are never questioned even though we now have thousands of federal laws governing individuals.

The kicker is that any restrictions on Congress say nothing about limitations on the States. And any limitations SCOTUS dreams up to control Congress of power can just as easily be applied to the states, and with just as much historical and legal justification.

Manipulating the ridiculous immunity claim

Trump, who already defied the norm of a peaceful transition of power, also defies the principle that no one is above the law. He says that no president can be prosecuted for crimes committed while in office unless they are first impeached. He agrees with Richard Nixon “Well, when the president does it … that means that it is not illegal.”

This is an interlocutory appeal. The decision of the Circuit Court was clearly right. There was no need for SCOTUS to take this case at this state of the proceedings. No one thinks the president is entitled to blanket immunity. After sitting on it for two weeks, SCOTUS set the case for “expedited” review seven weeks later. Who knows when they’ll issue a ruling.

It would be stupid for SCOTUS to take up the claim that Trump is immune from prosecution for any and all crimes committed in his official capacity. So SCOTUS rephrased the question presented:

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

This phrasing enables SCOTUS to screw up the trial by all sorts of legal trickery. For example, Trump is charged with “knowingly” participating in conspiracies. SCOTUS could hold that Trump is entitled to a presumption of immunity, and that the prosecution has the burden of proof on whether Trump intended to take actions outside his official duties. That would dramatically increase the burden on the prosecution.

I’m sure R-SCOTUS can come up with better ideas than mine.

Bad judging

I think R-SCOTUS members are bad at judging. They claim to be originalists, but that’s not what they did in the ballot case. The per curium opinion selectively quotes one iota of the history of the 14th Amendment and ignores the rest. It doesn’t address the mountains of information provided in the two amicus briefs filed by historians. It’s solely based on outcomes.

I discussed good judging in my post on Dobbs. As I see it, good judging at the appellate level is solving hard problems in the way most likely to produce the best possible long-term results. Past cases and history are not absolutely binding, but provide guidance and wisdom (sometimes) from other judges. For this rule, I rely on Judge Richard Posner’s views, and those of Oliver Wendell Holmes and John Dewey’s pragmatism, but I won’t rehash that here.

What R-SCOTUS does is invent a bunch of reasons why their preferred outcome is right. The per curium opinion is jumbled to the point that they feel obligated to justify its lack of coherence.

The dissent relies on principles of federalism, as the majority claims to do. It then looks at the likely outcomes of the Colorado case and explains why those outcomes are bad for the nation. It says that the Constitution doesn’t require that bad outcome. The dissenters give us exactly what Posner expects: their judgment of what is best for the future. They may be right. They certainly are right to refuse to go beyond what’s needed to resolve the present case; that’s a critical guardrail against overreach.

Why though?

The per curium decision all but insures that Trump will not be subject to disqualification under the Insurrection Clause. The timetable for the absurd immunity claim, and the mischief that awaits us from their decision is additional insurance.

I do not understand why R-SCOTUS is in the bag for Trump. They have life tenure, a decent income, and constant security. They have enormous power, to the point that no law or rule is effective without their consent. They have a long to-do list of laws and rules destined for termination. Why waste any of their muscle on Trump?

The easy answer is that they’re corrupt. There’s plenty of evidence of that. Clarence Thomas? His insurrectionist-adjacent wife? And a free RV? Alito, with his giant salmon? Neil Gorsuch’s house? Brett Kavanaugh’s disappearing debts? John Roberts’ wife with her $10 million from BigLaw for legal recruiting? Their total indifference to ethics and the appearance of impropriety?

But that probably isn’t it, unless Trump or someone else holds receipts for this and whatever else there might be, and made it clear those receipts would become public. And I don’t see why that would benefit the filthy rich donors who put these people into power. They set that to-do list and they don’t need Trump to get it done.

Gratitude? At this level there’s precious little of that.

Is it the purely political calculation that any action taken against Trump is too dangerous? Are they worried that his hard-core followers, armed to the teeth by R-SCOTUS cases, will riot or even attack SCOTUS if they rule against Trump? Do they think that normal people will complain but still comply with their rulings in his favor and accept his potential election peacefully?

Is there something worse that innocents like me can’t even imagine?

[cradleandshoot]

Legal opinion on "R-SCOTUS" from one of the frequent guest posters at Emptywheel

SCOTUS LINES UP BEHIND TRUMP’S DEFENSIVE STRATEGY

There is no doubt the Republicans on SCOTUS (hereinafter R-SCOTUS) are lined up behind Trump in his criminal cases. The timeline in the ridiculous immunity case and the decision in the Colorado ballot case are clear demonstrations of their commitment to his reelection despite his obvious unfitness for office.

The Colorado case

In Trump v. Anderson, all nine members of SCOTUS agreed that Colorado can not keep Trump off the ballot under the Insurrection Clause of the 14th Amendment. The per curium opinion offers several weak reasons to support this result.

Barrett and the Democratic appointees expressly dissented from the majority’s holding that only Congress can enforce the Insurrection Clause, and only with the approval of SCOTUS. The majority concludes with this:

These are not the only reasons the States lack power to enforcethis particular constitutional provision with respect to federal offices. But they are important ones, and it is the combination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular rationale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches.

Restrictions on Congressional Enforcement of the Insurrection Clause

That last quote refers to the part of the per curium opinion saying that § 5 of the 14th Amendment

… limits congressional legislation enforcing Section 3, because Section 5 is strictly “remedial.” To comply with that limitation, Congress “must tailor its legislative scheme to remedying or preventing” the specific conduct the relevant provision prohibits. Section 3, unlike other provisions of the Fourteenth Amendment, proscribes conduct of individuals. … Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruence and proportionality” between preventing or remedying that conduct “and the means adopted to that end.” Citations omitted.

The women on SCOTUS agree that this is unnecessary for the decision. It’s purely a creation of the SCOTUS men. It prescribes no standards, and it arrogates power to SCOTUS at the expense of Congress.

I note that the claim that the 14th Amendment only applies to the actions of individuals is the invention of an earlier SCOTUS, in cases like US v. Cruikshank and The Civil Rights Cases, which I discuss here and here. The Congress that drafted the 14th Amendment thought it had the power to legislate against the KKK and other violent white supremacists acting in their private capacity. For example, in Cruikshank, SCOTUS said principles of federalism mean that the 14th Amendment only applies to state action. Those early rancid decisions are never questioned even though we now have thousands of federal laws governing individuals.

The kicker is that any restrictions on Congress say nothing about limitations on the States. And any limitations SCOTUS dreams up to control Congress of power can just as easily be applied to the states, and with just as much historical and legal justification.

Manipulating the ridiculous immunity claim

Trump, who already defied the norm of a peaceful transition of power, also defies the principle that no one is above the law. He says that no president can be prosecuted for crimes committed while in office unless they are first impeached. He agrees with Richard Nixon “Well, when the president does it … that means that it is not illegal.”

This is an interlocutory appeal. The decision of the Circuit Court was clearly right. There was no need for SCOTUS to take this case at this state of the proceedings. No one thinks the president is entitled to blanket immunity. After sitting on it for two weeks, SCOTUS set the case for “expedited” review seven weeks later. Who knows when they’ll issue a ruling.

It would be stupid for SCOTUS to take up the claim that Trump is immune from prosecution for any and all crimes committed in his official capacity. So SCOTUS rephrased the question presented:

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

This phrasing enables SCOTUS to screw up the trial by all sorts of legal trickery. For example, Trump is charged with “knowingly” participating in conspiracies. SCOTUS could hold that Trump is entitled to a presumption of immunity, and that the prosecution has the burden of proof on whether Trump intended to take actions outside his official duties. That would dramatically increase the burden on the prosecution.

I’m sure R-SCOTUS can come up with better ideas than mine.

Bad judging

I think R-SCOTUS members are bad at judging. They claim to be originalists, but that’s not what they did in the ballot case. The per curium opinion selectively quotes one iota of the history of the 14th Amendment and ignores the rest. It doesn’t address the mountains of information provided in the two amicus briefs filed by historians. It’s solely based on outcomes.

I discussed good judging in my post on Dobbs. As I see it, good judging at the appellate level is solving hard problems in the way most likely to produce the best possible long-term results. Past cases and history are not absolutely binding, but provide guidance and wisdom (sometimes) from other judges. For this rule, I rely on Judge Richard Posner’s views, and those of Oliver Wendell Holmes and John Dewey’s pragmatism, but I won’t rehash that here.

What R-SCOTUS does is invent a bunch of reasons why their preferred outcome is right. The per curium opinion is jumbled to the point that they feel obligated to justify its lack of coherence.

The dissent relies on principles of federalism, as the majority claims to do. It then looks at the likely outcomes of the Colorado case and explains why those outcomes are bad for the nation. It says that the Constitution doesn’t require that bad outcome. The dissenters give us exactly what Posner expects: their judgment of what is best for the future. They may be right. They certainly are right to refuse to go beyond what’s needed to resolve the present case; that’s a critical guardrail against overreach.

Why though?

The per curium decision all but insures that Trump will not be subject to disqualification under the Insurrection Clause. The timetable for the absurd immunity claim, and the mischief that awaits us from their decision is additional insurance.

I do not understand why R-SCOTUS is in the bag for Trump. They have life tenure, a decent income, and constant security. They have enormous power, to the point that no law or rule is effective without their consent. They have a long to-do list of laws and rules destined for termination. Why waste any of their muscle on Trump?

The easy answer is that they’re corrupt. There’s plenty of evidence of that. Clarence Thomas? His insurrectionist-adjacent wife? And a free RV? Alito, with his giant salmon? Neil Gorsuch’s house? Brett Kavanaugh’s disappearing debts? John Roberts’ wife with her $10 million from BigLaw for legal recruiting? Their total indifference to ethics and the appearance of impropriety?

But that probably isn’t it, unless Trump or someone else holds receipts for this and whatever else there might be, and made it clear those receipts would become public. And I don’t see why that would benefit the filthy rich donors who put these people into power. They set that to-do list and they don’t need Trump to get it done.

Gratitude? At this level there’s precious little of that.

Is it the purely political calculation that any action taken against Trump is too dangerous? Are they worried that his hard-core followers, armed to the teeth by R-SCOTUS cases, will riot or even attack SCOTUS if they rule against Trump? Do they think that normal people will complain but still comply with their rulings in his favor and accept his potential election peacefully?

Is there something worse that innocents like me can’t even imagine?

I hope the SCOTUS didn't read your post. They would be greatly distressed at your observations.

[Kismet]

Incredibly, the Supremes granted a stay to continue to allow TX state government to usurp clear Federal Law as defined in the Constitution.

[dislaxxic]

The Supreme Court Just Gave Texas a Green Light to Harass Every Latino Person in the State

In the manner of a drunk teenager with a hand on a light switch, the Supreme Court has spent the past few days turning federal immigration law in Texas on and off, on and off, while making mewling noises about whether it was on or off when the party started. In a 6–3 decision along the usual lines on Tuesday afternoon, the Supreme Court allowed S.B. 4—Texas’ stunning usurpation of federal immigration law—to take effect. Through this divided and unreasoned vote, the high court will allow Texas to seize enforcement of immigration powers away from the federal government, a direct violation of a 2012 Supreme Court decision striking down Arizona’s infamous “show me your papers” law. In so doing, the conservative majority has blessed galling chicanery by the Court of Appeals for the 5th Circuit, which sought to shield Texas’ law from Supreme Court review indefinitely. As two of the dissenters noted, the six justices in the majority have injected “chaos and crisis in immigration enforcement” through oblivious procedural formalism that does not withstand the slightest scrutiny.

As signed into law late last year, S.B. 4 criminalizes unauthorized migration under Texas law, thereby turning unlawful entry and presence in the U.S. into an offense separate and apart from existing federal immigration law. The Texas measure also allows state law enforcement officers to stop and detain anyone they “suspect” of having entered Texas unlawfully, while instructing state courts to disregard any ongoing federal immigration proceedings. It also allows state judges to begin deportation proceedings and permits state magistrate judges to remove migrants back to Mexico as an alternative to continued prosecution. (Those who cannot prove their legal status may be jailed or deported back to Mexico, whether or not they’re Mexican.) This radical revision of immigration law will hinder migrants’ ability to cross safely into the country and seek asylum once here. It will also subject Latinos, including citizens and permanent residents, to heightened suspicion and harassment by law enforcement.

Texas justified S.B. 4 as a necessary exercise of Texas’ constitutional authority to repel an “actual invasion,” an absurd claim with zero basis in law or fact. As Texas Gov. Greg Abbott declared, S.B. 4 embodies Texas’ssingular view that its constitutional authority “is the supreme law of the land and supersedes any federal statutes to the contrary.” All of this, as a federal district court in Texas noted last month, amounts to “nullification of federal law and authority—a notion that is antithetical to the Constitution and has been unequivocally rejected by federal courts since the Civil War.” (Fact check: true.)

And yet shortly after that district court blocked S.B. 4, the 5th Circuit—and of course it was the 5th Circuit—froze its injunction and let Texas enforce the new law from top to bottom. So the Department of Justice, joined by pro-immigration groups, asked SCOTUS for relief. While the full court mulled this request, Justice Samuel Alito kept the law on hold until Tuesday (with a four-minute lapse on Monday afternoon when he let it take effect, apparently by accident, for a short moment). After Tuesday’s order, Texas can begin arresting people suspected of unauthorized presence in the country, interfering with migrants’ ability to seek asylum, and removing residents to Mexico—a sovereign foreign nation that has not actually agreed to take back individuals deemed deportable by Texas.

..