The justices appeared to be more concerned about what removing Trump from the ballot would do rather than whether the Constitution says he is disqualified.
I was so disappointed listening to the oral arguments. This once again shook my confidence about whether America’s powerful elites have the guts to stand up to rising fascism in the country. How can you allow an unsuccessful presidential candidate to use fraud, conspiracy and violence to try to overturn the election, and have the highest court refuse to address his disqualification from office but instead wring their hands in worry over the impact on democracy of trying to prevent an insurrectionist from undermining yet another election?
I don't understand the "why should Colorado decide this" argument. Colorado is raising an ISSUE--If their analysis of what Article 3 says is correct, the bar on trump SHOULD be nationwide. Article 3 doesn't mention anything about this being a state by state requirement.
If Alabama passed a law that reinstituted slavery, would the court argue "oh, but other states might disagree so we can't decide whether or not the Constitution prohibits such a law."
The court's JOB is to interpret what words in the constitution mean. The only approach that actually means anything to this issue is to do their job. They can either accept or reject Colorado's definition of it as being sufficient. They have the facts before them and I don't think any of those are really in dispute: he did what he did.
The end result is this necessarily will end up back on their doorstep. They are literally choosing not to settle anything only that states can't remove a national candidate from the ballot for 14 §3 violations.
So what happens if someone who held office and did engage in an insurrection, runs for President and then wins? They by the constitution can't take office unless Congress says they can... if Congress says no what then? Take the runner up? Redo the election? Both are far far worse in terms of disenfranchisement, the former because that means the party who had one should have had another candidate... the latter because this would force an election that will likely be passed Jan 20th which would force the current President to remain in office past when they are supposed to leave.
Saying that congress has to create some mechanism literally is just making shit up. What if they don't? Just no possible remedy until some congress eventually can do the job? That's not going to work.
So the option would have to be immediately go to federal court to disqualify this candidate nationally... WHICH MEANS SCOTUS WILL HAVE TO DEAL WITH IT ANYWAY. Just fucking wasting time.
Since trump didn't actually go to the capitol, it seems to me the easiest out is just to say "engage" means physically engage: he had the First Amendment right to urge people to "fight for their rights." (I don't agree, but it would be a way of deciding this that would at least give some guidance.) Ironically, but for that secret service guy who wouldn't LET trump go to the capitol as he raged about wanting to do, the whole question might have had a different outcome.
Though as President he literally did not act and refused to act for hours while it was going on. That is direct engagement because he was the one person who could actually do something and he chose nothing. Also maybe cheered them on I don't recall.
Here again, I'd agree but I'm not the supreme court, which is perfectly capable of deciding what "engage" means in the context of the constitution, whether or not you or I agree with it.
I mean I agree that they SHOULD be capable of defining what "engage" and "insurrection" mean in Section 3... but based on that hearing I don't think they will even though that's literally their job. So I personally do not think they are capable.
well, I agree they probably won't do any defining. They COULD if they thought about it, but I suspect they would narrow "engage" to "physical involvement."
I was disappointed with Justice Jackson's questions. Her "appreciated" was a handwave (justices repeatedly are adding a "yeah okay, moving on" to close off responses) after each and every point was refuted. Kagan was in prudential mode. Jackson added fuel to total b.s. SMH.
A blatant thing not covered with that before the 17th Amendment, state legislatures chose senators. Election Law Blog had an entry on how a possible senator was off the table in part because he was insurrection-curious. I also want to toss out a name. John Breckinridge. He was a vice president. Then he was a Confederate general and Cabinet officer.
States have broad power over presidential elections. State legislatures could choose electors and base it on any number of things. They can allot electors in a way that can determine the election. Some wanted the governor of NY to do that to help defeat Jefferson in 1800. Gov. Jay thought it unethical. But, it wasn't unconstitutional.
The fact the result here is expected should not give SCOTUS, who we shouldn't respect for other reasons, a pass here.
Exactly, States have broad authority over how they conduct their presidential elections. This argument from SCOTUS was such bs (also really annoyed that so much time was dedicated to the office/officer stuff particularly from Jackson)
It’s up to us to stop Trump — the voters I mean. It always was. There’s no savior coming. No white knight. No Gandalf at dawn on the third day.
But it’s not just stopping Trump. It’s flipping every Republican out of every office. It’s amending the constitution. It’s changing the way we vote so that parties no longer have the power of the primary. It’s ending the electoral college. It’s abolishing the Senate (so that states of a half million people don’t have the same power as states of 10 million).
Either we save our democracy with these steps or this happens again. And again. Until democracy dies.
Thank you Mr. Geitner for clearly explaining “what’s what”. I also listened to the whole two hours with my heart sinking each time Colorado’s Murray spoke: why oh why didn’t the State put a powerhouse Supreme Court lawyer cn to argue? Forgive me, but I think even a smart as a whip law student could have done better, and I don’t care that Murray had been a Clerk at the Court. (I certainly could not tell.)
I kept trying to tell him -even shouting at my radio- how to give the help the Justices were looking for but obviously he didn’t hear me through the ethers. He missed a golden opportunity to try and keep an Insurrectionist -and the future ones-off the ballots. Even Neil Katyal Supreme Court expert / former Solicitor General on MSNBC today —has argued more than 50 cases at the Court— was clearly upset.
I was even shocked that it did not appear that any of the Justices or lawyers arguing for Colorado had read Judge Luttig or the two Federalist Society-professors that had advocated during 2023 for the 14A's power to keep Trump off the ballot nor any of the history professors' Amicus briefs. If they had, they certainly did not try to focus on that scholarship. It came across to me that the Justices' minds had been made up before they walked in this morning.
Oh well, now it’s up to we that know that that old “textualism” nonsense was just a con-job in specific cases to reach the results the Justices on the Right wanted. Now it’s up to us that revere democracy to come out in droves to make sure that democracy is saved.
Because he wasn't the lawyer arguing for Colorado, he was the lawyer arguing for the voters who brought the case. The lawyer arguing for Colorado was from the State AG's office and was arguing for Griswold the SoS.
Here's where I was coming from: am a lawyer, at one point for 13 years was an Assistant County Attorney for Miami-Dade County. Government law firms have been known to hire "outside counsel". I believe that "outside counsel" --who would have been a Supreme Court powerhouse at parrying with the Justices -- should have been hired for Colorado's argument at least instead of Mr. Murray.
Again, Cynbel’s point is that Jason Murray is not making “Colorado’s argument.” He was making the argument for “Colorado Republican and independent voters challenging Trump’s inclusion on the ballot.” This was not a governmental decision.
I’ve read the briefs & I listened today ... The Court seems to want Congress to make laws about federal election qualifications, so they can come behind them and make a ruling. 👀 The Jan 6 Cmte served up Trump on a platter and Congress did zilch about it. They’re doing zilch now. It’s obstructionist and purposeful, as the Court well knows.
Meanwhile, Dems have a great campaign topic - a Do Nothing Congress - to drive home for the next eight months. Dems need both houses to DO THINGs... seat judges and fix this, along with foreign aid, voting, abortion, and guns.
I’m with Amelia -- No more uncontested seats at the state level! The state level party Dems have got to go after Rs everywhere.
TFG will be in court all year ... a lot can happen in 8 months, but this fight is will not be quick or easy.
I guess we're all consequentialists now. But I have been thinking about whether the Supreme Court's reversing the Colorado supreme court's decision is consistent with the (purported) theory behind Bush v. Gore (2000), where you also see the Supremes overruling a state supreme-court decision relating to a federal election. In Bush v. Gore, the 14th Amendment Equal Protection Clause was the nominal theory that justified the result, but it became clear over time that the majority in that case was highly consequentialist in its approach to the case. (They thought the consequences of *not stopping the counting of votes* would mean a delayed, corrosive process with no promise of finality. Little did they know they were about to become the arbiters of state law on a whole set of new questions down the road.)
Ugh, this is so frustrating. McConnell said he wouldn't vote to impeach because the courts will work out it, the courts say it's up to Congress. Meanwhile tr... deflects, projects, threatens and delays. Those in power say "what about the consequences if we take legitimate actions to stop tr..". for fear of the terror he will promote. We are living under a domestic threats and terror and it is impacting legal decisions. E. Jean Carroll is looking like an outlier 🤦🏻 More people in power with her courage please 🥺
OT but I hope you’ll write about the absolutely unhinged dissents from the loony right wing of the 5th Circuit in US v Abbott (should be called US v Sovereign Republic of Texas).
Thanks! I stand corrected as to government involvement; don't know how I missed that and it's neither the first nor the last time I will make a mistake in life. But I still think he was weak and neither did himself credit nor helped his clients very much and that a stronger Supreme Court counsel could have been chosen from the get go. Also, all of the illustrious pro-"kick him off the ballot" Judge and historian Amicus briefs had really shown the way / set out roadmaps that might have given the Colorado litigants a better chance in the arguments.
I think "we the people" all lost out here, but under other circumstances, such as "voting rights" and "reproductive rights", if not also gerrymandering, the Court is fine with "State's Rights" principles holding sway and the Court holding, "We have no problem with Federalism" here, the over-arching idea of not permitting insurrectionists on ballots,etc. Also, I think the Court can set out guidelines for all of the states no matter what their individual state election practices and procedures. States already control their own ballots as to the age and nationality requirements for the national office of President.
In the end, the Court seems to want to do away with the 14th A / Sec. 3 as it ever might apply to a national candidate notwithstanding that all back after the Civil War recognized that the Amendment could have barred Jefferson Davis.
Is there any possibility that the Justices, prior to argument, negotiated an agreement among themselves to take an off-ramp on the DQ issue, on a unified basis, but also to deny cert (or at least a stay) on the immunity appeal, so that the trial clock in Judge Chutkan's court could restart? Such a deal would offer the prospect of a trial and possible conviction prior to election. -- and the hope of thereby avoiding the danger of a 1/6/25 debacle which this decision would otherwise leave wide open. I have no idea if those sorts of negotiations happen among the Justices, but it would explain the apparent unanimity and relative comfort they seem to have in bouncing the CO decision.
I was so disappointed listening to the oral arguments. This once again shook my confidence about whether America’s powerful elites have the guts to stand up to rising fascism in the country. How can you allow an unsuccessful presidential candidate to use fraud, conspiracy and violence to try to overturn the election, and have the highest court refuse to address his disqualification from office but instead wring their hands in worry over the impact on democracy of trying to prevent an insurrectionist from undermining yet another election?
I can’t say I’m surprised. This court doesn’t care about pissing off women, but crossing white Christian men is a step too far
I don't understand the "why should Colorado decide this" argument. Colorado is raising an ISSUE--If their analysis of what Article 3 says is correct, the bar on trump SHOULD be nationwide. Article 3 doesn't mention anything about this being a state by state requirement.
If Alabama passed a law that reinstituted slavery, would the court argue "oh, but other states might disagree so we can't decide whether or not the Constitution prohibits such a law."
The court's JOB is to interpret what words in the constitution mean. The only approach that actually means anything to this issue is to do their job. They can either accept or reject Colorado's definition of it as being sufficient. They have the facts before them and I don't think any of those are really in dispute: he did what he did.
The end result is this necessarily will end up back on their doorstep. They are literally choosing not to settle anything only that states can't remove a national candidate from the ballot for 14 §3 violations.
So what happens if someone who held office and did engage in an insurrection, runs for President and then wins? They by the constitution can't take office unless Congress says they can... if Congress says no what then? Take the runner up? Redo the election? Both are far far worse in terms of disenfranchisement, the former because that means the party who had one should have had another candidate... the latter because this would force an election that will likely be passed Jan 20th which would force the current President to remain in office past when they are supposed to leave.
Saying that congress has to create some mechanism literally is just making shit up. What if they don't? Just no possible remedy until some congress eventually can do the job? That's not going to work.
So the option would have to be immediately go to federal court to disqualify this candidate nationally... WHICH MEANS SCOTUS WILL HAVE TO DEAL WITH IT ANYWAY. Just fucking wasting time.
Since trump didn't actually go to the capitol, it seems to me the easiest out is just to say "engage" means physically engage: he had the First Amendment right to urge people to "fight for their rights." (I don't agree, but it would be a way of deciding this that would at least give some guidance.) Ironically, but for that secret service guy who wouldn't LET trump go to the capitol as he raged about wanting to do, the whole question might have had a different outcome.
Though as President he literally did not act and refused to act for hours while it was going on. That is direct engagement because he was the one person who could actually do something and he chose nothing. Also maybe cheered them on I don't recall.
Here again, I'd agree but I'm not the supreme court, which is perfectly capable of deciding what "engage" means in the context of the constitution, whether or not you or I agree with it.
I mean I agree that they SHOULD be capable of defining what "engage" and "insurrection" mean in Section 3... but based on that hearing I don't think they will even though that's literally their job. So I personally do not think they are capable.
well, I agree they probably won't do any defining. They COULD if they thought about it, but I suspect they would narrow "engage" to "physical involvement."
Oh he incited them to try and hang Mike Pence with a tweet sometime around 2:30pm
I was disappointed with Justice Jackson's questions. Her "appreciated" was a handwave (justices repeatedly are adding a "yeah okay, moving on" to close off responses) after each and every point was refuted. Kagan was in prudential mode. Jackson added fuel to total b.s. SMH.
A blatant thing not covered with that before the 17th Amendment, state legislatures chose senators. Election Law Blog had an entry on how a possible senator was off the table in part because he was insurrection-curious. I also want to toss out a name. John Breckinridge. He was a vice president. Then he was a Confederate general and Cabinet officer.
States have broad power over presidential elections. State legislatures could choose electors and base it on any number of things. They can allot electors in a way that can determine the election. Some wanted the governor of NY to do that to help defeat Jefferson in 1800. Gov. Jay thought it unethical. But, it wasn't unconstitutional.
The fact the result here is expected should not give SCOTUS, who we shouldn't respect for other reasons, a pass here.
Exactly, States have broad authority over how they conduct their presidential elections. This argument from SCOTUS was such bs (also really annoyed that so much time was dedicated to the office/officer stuff particularly from Jackson)
So, §3 is in the Constitution, but we really, really can't use it, best to ignore it because "consequences".
Yes, section 3 is part of the constitution but apparently, by supreme court standards, unable to be used as written.
Perhaps trump will take a black sharpie and mark a line through it ensuring it will never be used.
So sorry for misspelling your name Mr. Geidner! I see no way to edit comments as I can Notes on my iPad app.
It’s up to us to stop Trump — the voters I mean. It always was. There’s no savior coming. No white knight. No Gandalf at dawn on the third day.
But it’s not just stopping Trump. It’s flipping every Republican out of every office. It’s amending the constitution. It’s changing the way we vote so that parties no longer have the power of the primary. It’s ending the electoral college. It’s abolishing the Senate (so that states of a half million people don’t have the same power as states of 10 million).
Either we save our democracy with these steps or this happens again. And again. Until democracy dies.
Thank you Mr. Geitner for clearly explaining “what’s what”. I also listened to the whole two hours with my heart sinking each time Colorado’s Murray spoke: why oh why didn’t the State put a powerhouse Supreme Court lawyer cn to argue? Forgive me, but I think even a smart as a whip law student could have done better, and I don’t care that Murray had been a Clerk at the Court. (I certainly could not tell.)
I kept trying to tell him -even shouting at my radio- how to give the help the Justices were looking for but obviously he didn’t hear me through the ethers. He missed a golden opportunity to try and keep an Insurrectionist -and the future ones-off the ballots. Even Neil Katyal Supreme Court expert / former Solicitor General on MSNBC today —has argued more than 50 cases at the Court— was clearly upset.
I was even shocked that it did not appear that any of the Justices or lawyers arguing for Colorado had read Judge Luttig or the two Federalist Society-professors that had advocated during 2023 for the 14A's power to keep Trump off the ballot nor any of the history professors' Amicus briefs. If they had, they certainly did not try to focus on that scholarship. It came across to me that the Justices' minds had been made up before they walked in this morning.
Oh well, now it’s up to we that know that that old “textualism” nonsense was just a con-job in specific cases to reach the results the Justices on the Right wanted. Now it’s up to us that revere democracy to come out in droves to make sure that democracy is saved.
Because he wasn't the lawyer arguing for Colorado, he was the lawyer arguing for the voters who brought the case. The lawyer arguing for Colorado was from the State AG's office and was arguing for Griswold the SoS.
Here's where I was coming from: am a lawyer, at one point for 13 years was an Assistant County Attorney for Miami-Dade County. Government law firms have been known to hire "outside counsel". I believe that "outside counsel" --who would have been a Supreme Court powerhouse at parrying with the Justices -- should have been hired for Colorado's argument at least instead of Mr. Murray.
Again, Cynbel’s point is that Jason Murray is not making “Colorado’s argument.” He was making the argument for “Colorado Republican and independent voters challenging Trump’s inclusion on the ballot.” This was not a governmental decision.
I’ve read the briefs & I listened today ... The Court seems to want Congress to make laws about federal election qualifications, so they can come behind them and make a ruling. 👀 The Jan 6 Cmte served up Trump on a platter and Congress did zilch about it. They’re doing zilch now. It’s obstructionist and purposeful, as the Court well knows.
Meanwhile, Dems have a great campaign topic - a Do Nothing Congress - to drive home for the next eight months. Dems need both houses to DO THINGs... seat judges and fix this, along with foreign aid, voting, abortion, and guns.
I’m with Amelia -- No more uncontested seats at the state level! The state level party Dems have got to go after Rs everywhere.
TFG will be in court all year ... a lot can happen in 8 months, but this fight is will not be quick or easy.
I guess we're all consequentialists now. But I have been thinking about whether the Supreme Court's reversing the Colorado supreme court's decision is consistent with the (purported) theory behind Bush v. Gore (2000), where you also see the Supremes overruling a state supreme-court decision relating to a federal election. In Bush v. Gore, the 14th Amendment Equal Protection Clause was the nominal theory that justified the result, but it became clear over time that the majority in that case was highly consequentialist in its approach to the case. (They thought the consequences of *not stopping the counting of votes* would mean a delayed, corrosive process with no promise of finality. Little did they know they were about to become the arbiters of state law on a whole set of new questions down the road.)
Yes, Scalia's plaintive argument of how much this would hurt W was especially ignominious.
Ugh, this is so frustrating. McConnell said he wouldn't vote to impeach because the courts will work out it, the courts say it's up to Congress. Meanwhile tr... deflects, projects, threatens and delays. Those in power say "what about the consequences if we take legitimate actions to stop tr..". for fear of the terror he will promote. We are living under a domestic threats and terror and it is impacting legal decisions. E. Jean Carroll is looking like an outlier 🤦🏻 More people in power with her courage please 🥺
🙁😔
OT but I hope you’ll write about the absolutely unhinged dissents from the loony right wing of the 5th Circuit in US v Abbott (should be called US v Sovereign Republic of Texas).
Thanks! I stand corrected as to government involvement; don't know how I missed that and it's neither the first nor the last time I will make a mistake in life. But I still think he was weak and neither did himself credit nor helped his clients very much and that a stronger Supreme Court counsel could have been chosen from the get go. Also, all of the illustrious pro-"kick him off the ballot" Judge and historian Amicus briefs had really shown the way / set out roadmaps that might have given the Colorado litigants a better chance in the arguments.
I think "we the people" all lost out here, but under other circumstances, such as "voting rights" and "reproductive rights", if not also gerrymandering, the Court is fine with "State's Rights" principles holding sway and the Court holding, "We have no problem with Federalism" here, the over-arching idea of not permitting insurrectionists on ballots,etc. Also, I think the Court can set out guidelines for all of the states no matter what their individual state election practices and procedures. States already control their own ballots as to the age and nationality requirements for the national office of President.
In the end, the Court seems to want to do away with the 14th A / Sec. 3 as it ever might apply to a national candidate notwithstanding that all back after the Civil War recognized that the Amendment could have barred Jefferson Davis.
Is there any possibility that the Justices, prior to argument, negotiated an agreement among themselves to take an off-ramp on the DQ issue, on a unified basis, but also to deny cert (or at least a stay) on the immunity appeal, so that the trial clock in Judge Chutkan's court could restart? Such a deal would offer the prospect of a trial and possible conviction prior to election. -- and the hope of thereby avoiding the danger of a 1/6/25 debacle which this decision would otherwise leave wide open. I have no idea if those sorts of negotiations happen among the Justices, but it would explain the apparent unanimity and relative comfort they seem to have in bouncing the CO decision.
Two days ago was uplifted by the Appeals Court decision rejecting Trump’s claim of absolute immunity.
Today was gut wrenching listening to the highest court kneel and kiss the ring.
Two days ago was even hopeful that the SC might refuse to hear a Trump immunity appeal.
Now fear they might agree to hear it and delay Jack Smith’s DC case beyond the election.