Donald Trump has asked the Supreme Court to address whether he engaged in insurrection on Jan. 6, 2021. The nation needs the justices to rule that he did.
I am anxiously awaiting to see see how the textualists/originalists who just said in Dobbs that they must follow the Constitution regardless of political consequences get themselves out of this jam without committing judicial malfeasance that makes Bush v Gore look like a masterpiece in legal brilliance.
Idk but they will. They're intelligent. They use their intelligence for evil purposes, but they're intelligent. Much more so than the Trump judges who populate the lower federal courts.
This is a substack about the law and I don't disagree with anything here on those terms. The difficulty for me is that it's not really a constitutional problem or a legal problem; it's a political problem. What ails the nation is not so much Donald Trump, but the fact that tens of millions of voters (still) think Donald Trump is the kind of person who ought to be president. As I see it, we're not asking the courts to protect us from Trump; we're asking them to protect us from these tens of millions of American voters, who quite frankly demonstrate that they do not believe in our system of government. And it seems to me that problem ultimately can't be solved that way. Maybe I'm wrong; maybe this is a necessary first step. But it took decades of rot to get this country into the situation it finds itself in, and as they say, it's a long way back from hell.
The thing about followers of fascists is that they are mostly powerful because they have people who rile them up and get them to move in a mob. There have been politicians in this country who corruptly manipulated the levers of power before, but they didn't command the same kind of violent armed action that Trump does. Trump is a character that makes violent people believe they can get away with violence in his name. Removing him isn't enough but it is a massive first step.
Those decades of rot began with the failure to indict Nixon. Repeatedly refusing to prosecute crimes of this magnitude leads to a portion of the body politic deeming such criminal acts as acceptable.
SCOTUS must uphold that Trump engaged in insurrection.
I agree. These are two separate issues. The Court must address the first. Voters must address the second, because Trumpists both pre-existed and will outlast their namesake. DJT is just the clown they invested with power. The “ideology” of hate will persist.
The gov’t (Supreme Court) has the duty to protect our democracy, so preventing an insurrectionist from running for the Presidency, also protects US Citizens from our fellow countrymen who might support Trump for President.
I trust the Court to help save our Democracy, more than I trust the electorate. I need The Court to protect me & my Country - from Trump & those who would vote for him given the chance! Trump, Pence & Congress have all failed us already - I hope the Supreme Court does not also fail to do their legal duty, which should not be political for them - it is their job!
Is this not something that shows up in various aspects?
Brown v. Board of Education was not only a constitutional problem. Ideally, Congress would have enforced the Constitution. The public would have ideally not supported segregation. The Supreme Court stating what the law is deals with part of the problem. There, it helped move the envelope, stating as matter of constitutional law that separate was not equal.
To the degree voters have public power, the courts have a role, just as the Supreme Court years back said that political primaries (deemed "private") could not be white only.
Yes, although nowadays I'm skeptical about how much the envelope moved, at least from any court decisions. There is cultural change over time, thankfully, but it clearly hasn't affected a large portion of the population. Brown v. Board is probably the starting point, but certainly the Civil Rights Act a decade later; conservatives have been plotting this ever since then. They've gotten rid of Roe and they intend to get rid of the rest of what's happened in the past 60-70 years and then some. And if they win the election they will finally have the power to do it without those pesky checks and balances. This shouldn't be happening, but it is, and they may be too close to give up without a vicious fight. I guess it's coming one way or another, regardless of what any court does; it's just a matter of who wants to be on the right side of history.
Yes. it's part of the big picture of the role of the courts, including how much of a role they have and how much they should have. The ruling here realistically by itself won't "save us" any more than criminal justice rulings "saved" minorities from police abuse all by its lonesome. A sense of realism is healthy.
The context of 14A is it was imposed by the victors after a war. Meaning it was understood that it was backed by threat of force. This country has not (yet) demonstrated to me that it has the stomach for that, and maybe that's the problem. Bullies or abusers do not stop until they are forced to. That's the only thing they respond to. We can kick Trump off the ballot, but ultimately what is needed is to subdue the insurrection. Until we do that, everything else is trivial. Idk whether it can be done peacefully (I'm skeptical), but the problem is and remains what to do with the tens of millions of Americans who support insurrection.
Only time will tell, but, to be honest, I think I just have more confidence in the rule of law than you do. Bullies said the exact same thing about Brown v. Board of Education, but, though it was difficult, the sky did not fall. Now, maybe Trumpists are even worse than Southern racists in the 60s and 70s, but I doubt it.
Well, they aren't so much worse as they are the exact same people. They've been seething for decades and they've built echo chambers to whip up frenzy and to move this country into a post-truth environment. I don't see how this ends peacefully; January 6th, and specifically the (non) response to January 6th, made sure of that. And I don't mean the official response, which is still ongoing in the court system today. I mean that, for half of the country, what happened that day was forgotten within 72 hours, and a new narrative was written wherein they were the victims of state oppression. It's impossible to overstate how bad this is. So yes, I have very little confidence, and that's been the case for eight years. I think it's justified by the story so far.
I want to thank you for your hope honesty courage and trust reporting truth to power with evidence. Your astute courageous words written in the moment 3 years ago today are testament to your fundamental understanding of our representational form of living democracy.
I mistakenly thought VP Pence refused to get in the USSS car because he feared where he and his family would be taken.
I now think he refused to get in the car because he had a job to do and he new if he left others, standing back and standing by would gladly step up and take over the VP job that day. Miraculously VP Pence and many other office holders of the US Constitution resumed their official duties 1/6/21 performing the electoral vote count after the insurrectionists had left the building.
Over 140 DCCP were injured and some died of their injuries. One insurrectionist was shot climbing thru a Capitol broken window. I too truly believe Trump's actions on J6 justly include him in the insurrection as the sole beneficiary of the insurrectionists goal for the 45th president to remain in power.
Justice Thomas's spouse Virginia, was an integral principal actor organizing and leading the insurrection and he should recuse because of her J6 insurrectionist activities. So far he has refused to recuse.
I hope the rest of the US Supreme Court justice's affirm CO's Supreme Ct decision barring Trump from the ballot because the CO trial court rightly found Trump engaged in insurrection. Our US Constitution's 14th Amendment article 3 unequivocally bars insurrectionists from holding constitutional offices again.
Thank you for sharing your texts from three years ago as well as WAPO’s perspective then. The question is what happened to the shared understanding that an insurrection unfolded that day—that it was an attempt to nullify the legal votes of 80 million Americans by a coup, with fake electors? Obviously, those 80 million votes were not considered sacred by trump and his followers.
Now our country’s future is going to be subjected to the parsing of the 14th amendment by the likes of Thomas, who will not recuse himself even though his wife was one of the cheerleaders at the ellipse on January 6th. He can’t because that would make it more likely to be 4-4 decision. What about kavanaugh? Trump’s lawyer noted how hard trump worked to get him on the court. What’s that about?
Yes, what happened to the shared understanding. It lasted a few days, and then it was back to the same old. The lesson wasn't learned, which means we can expect a repeat, and we can expect it to be worse.
I agree that Trump did in fact engage in insurrection. The question is who gets to enforce it? Is it a state or federal jurisdictional matter? The Amendment was added to prohibit state actors from circumventing federal supremacy and to prohibit anyone who engaged in rebellion and insurrection from ever holding office. Seems to me the states rights absolutists on the SC are going to have a hard time convincing themselves that the federal government is the authority with regard to deciding whether Trump engaged in insurrection. And that states do not have the right. And yet, they may well decide it is a federal jurisdictional issue.
The Chief Justice has been whining about the unfair treatment of the courts credibility for quite some time. If he wishes to restore some credibility, he'll have to insist that Thomas recuse in this case. Or, it will only add to the courts impartial credibility problem.
I almost feel bad for Roberts. Almost. He's trying, or he thinks he's trying, to hold the country together by taking a middle road between the two sides. In my view he's conceding too much to the conservative side but that's to be expected given his background (and the composition of the court). The thing is, he's all alone in this, and the only thing to be found in the middle of the road is roadkill. When he was the median vote, it might have been effective, but now it just looks feckless.
Thank you for saying this clearly. It is what I, a mere citizen unschooled in the law, see as certainly correct. Lawyers need to weigh in as you have. Plain language and plain facts very occasionally make the law equally plain, even to laymen. Thanks again.
Thank you for this wonderful reflection on the January 6th anniversary and how it pertains to the Colorado case. I have to think that the Conservatives on the Court will want to avoid making this an argument over whether Trump’s actions constitute insurrection. Despite the inherent weakness of the other arguments for overturning the Colorado decision, I suspect that’s where the Conservatives will try to form a ruling. Might also see them make a head nod towards Congress’s decision not to impeach as well to try and provide themselves with cover.
My guess is the Court’s first interest is self preservation and that it will kick the can down the road, e.g., by saying it may have been an insurrection but Colorado did not apply a sufficiently rigorous standard or process to support that conclusion so they get a do-over. By which time maybe he’ll have been found guilty of something or defeated at the polls or something else.
The Maine decision and other states considering what to do makes a remand tough-I think they’ll want to do this once. There are really no outs on this. My guess is that this will need to be a Roberts opinion. If he starts asking insurrection hypotheticals during the oral arguments, then we might know where they are headed.
So my question is will Thomas recuse himself. I mean if he votes in favor of Colorado his freebies will dry up and his “best friend” will never speak to him.bet he doesn’t and votes in Tfg favor
I really hope SCOTUS at the very least says it’s undeniable that Jan6 was an insurrection. Teri Kanefield put out a blog about it that made me much less hopeful that Judge Luttig and Jill Wine Banks are right in their confidence the CO decision will stand. Did you read her latest?
The US code provides that a judge must disqualify himself/herself when his/her impartiality "might reasonably be questioned". I know Thomas won't recuse, even though the best case for recusal lies with him. I don't believe (yet), however, that Kavanaugh, Coney-Barrett, or Gorsuch lack principle (unlike Thomas). If they are reluctant to participate in a typical Alito-style contortion of judicial diarrhea to support keeping Trump on the ballot, they each could recuse. And they can cite to the statements of Trump's spokesmodel attorney, talking about how Kavanaugh is expected to "step up" for Trump, who "went through hell" to get him appointed, for support.
(*** I am fully aware that there's little chance in hell that this happens ***)
I think the 25A provision argument is reasonably set forth and convincing. OTOH, I can understand if someone thinks it does not apply. There is a sensible argument it is generally understood to apply to someone who is medically unable. The language is more open-ended. I do think the Constitution's understanding develops over time. On 1/6, at least, he showed himself incompetent.
The 14A, sec. 3 arguments made repeatedly are much shoddier. Jamelle Bouie (NYT), Kevin Kruse (Susbstack), and now Gerard N. Magliocca (multiple places, including an excellent NYT op-ed) are just a few cases where we see it is very clear he committed insurrection.
The "history and tradition" (that this Court claims to care about) provides clarity. The "presidents don't apply" is nonsense. Worrying about "democracy" is especially asinine for someone who came into power with less than three million popular votes than his opponent.
Gerard N. Magliocca notes Congress has the power to declare amnesty. They could have added further enforcement rules like they did to clarify what the 13th, 14th, and 15th Amendments meant. They did not. Supreme Court shouldn't "save us" like they did in Bush v. Gore.
Thomas should recuse. For those who want, I say more on my own substack.
Whole lot of "must" and "should" in that article. Not a lot of "will." Anyone think they actually will do all this stuff they must and should do? I sure don't.
Yes. I am not, to my knowledge, a majority of the Supreme Court. And there’s going to be plenty more coverage between now and oral arguments a month from now. Seemed important to lay out my position on the big picture going into it all.
I am anxiously awaiting to see see how the textualists/originalists who just said in Dobbs that they must follow the Constitution regardless of political consequences get themselves out of this jam without committing judicial malfeasance that makes Bush v Gore look like a masterpiece in legal brilliance.
Idk but they will. They're intelligent. They use their intelligence for evil purposes, but they're intelligent. Much more so than the Trump judges who populate the lower federal courts.
Excellent, excellent piece, Chris. Insightful, prescient and well said. Thank you.
This is a substack about the law and I don't disagree with anything here on those terms. The difficulty for me is that it's not really a constitutional problem or a legal problem; it's a political problem. What ails the nation is not so much Donald Trump, but the fact that tens of millions of voters (still) think Donald Trump is the kind of person who ought to be president. As I see it, we're not asking the courts to protect us from Trump; we're asking them to protect us from these tens of millions of American voters, who quite frankly demonstrate that they do not believe in our system of government. And it seems to me that problem ultimately can't be solved that way. Maybe I'm wrong; maybe this is a necessary first step. But it took decades of rot to get this country into the situation it finds itself in, and as they say, it's a long way back from hell.
The thing about followers of fascists is that they are mostly powerful because they have people who rile them up and get them to move in a mob. There have been politicians in this country who corruptly manipulated the levers of power before, but they didn't command the same kind of violent armed action that Trump does. Trump is a character that makes violent people believe they can get away with violence in his name. Removing him isn't enough but it is a massive first step.
Those decades of rot began with the failure to indict Nixon. Repeatedly refusing to prosecute crimes of this magnitude leads to a portion of the body politic deeming such criminal acts as acceptable.
SCOTUS must uphold that Trump engaged in insurrection.
I agree. These are two separate issues. The Court must address the first. Voters must address the second, because Trumpists both pre-existed and will outlast their namesake. DJT is just the clown they invested with power. The “ideology” of hate will persist.
The gov’t (Supreme Court) has the duty to protect our democracy, so preventing an insurrectionist from running for the Presidency, also protects US Citizens from our fellow countrymen who might support Trump for President.
I trust the Court to help save our Democracy, more than I trust the electorate. I need The Court to protect me & my Country - from Trump & those who would vote for him given the chance! Trump, Pence & Congress have all failed us already - I hope the Supreme Court does not also fail to do their legal duty, which should not be political for them - it is their job!
Yes, that's what's scary - it's the 74 million who voted for him that we need protection from. I'm pretty sure this doesn't end well :(
Is this not something that shows up in various aspects?
Brown v. Board of Education was not only a constitutional problem. Ideally, Congress would have enforced the Constitution. The public would have ideally not supported segregation. The Supreme Court stating what the law is deals with part of the problem. There, it helped move the envelope, stating as matter of constitutional law that separate was not equal.
To the degree voters have public power, the courts have a role, just as the Supreme Court years back said that political primaries (deemed "private") could not be white only.
Yes, although nowadays I'm skeptical about how much the envelope moved, at least from any court decisions. There is cultural change over time, thankfully, but it clearly hasn't affected a large portion of the population. Brown v. Board is probably the starting point, but certainly the Civil Rights Act a decade later; conservatives have been plotting this ever since then. They've gotten rid of Roe and they intend to get rid of the rest of what's happened in the past 60-70 years and then some. And if they win the election they will finally have the power to do it without those pesky checks and balances. This shouldn't be happening, but it is, and they may be too close to give up without a vicious fight. I guess it's coming one way or another, regardless of what any court does; it's just a matter of who wants to be on the right side of history.
Yes. it's part of the big picture of the role of the courts, including how much of a role they have and how much they should have. The ruling here realistically by itself won't "save us" any more than criminal justice rulings "saved" minorities from police abuse all by its lonesome. A sense of realism is healthy.
But that's exactly the problem the 14A Section 3 was designed to address!
Section 3 wouldn't be necessary if there were no chance that, for example, Jeff Davis would ever receive popular support.
The context of 14A is it was imposed by the victors after a war. Meaning it was understood that it was backed by threat of force. This country has not (yet) demonstrated to me that it has the stomach for that, and maybe that's the problem. Bullies or abusers do not stop until they are forced to. That's the only thing they respond to. We can kick Trump off the ballot, but ultimately what is needed is to subdue the insurrection. Until we do that, everything else is trivial. Idk whether it can be done peacefully (I'm skeptical), but the problem is and remains what to do with the tens of millions of Americans who support insurrection.
Only time will tell, but, to be honest, I think I just have more confidence in the rule of law than you do. Bullies said the exact same thing about Brown v. Board of Education, but, though it was difficult, the sky did not fall. Now, maybe Trumpists are even worse than Southern racists in the 60s and 70s, but I doubt it.
Well, they aren't so much worse as they are the exact same people. They've been seething for decades and they've built echo chambers to whip up frenzy and to move this country into a post-truth environment. I don't see how this ends peacefully; January 6th, and specifically the (non) response to January 6th, made sure of that. And I don't mean the official response, which is still ongoing in the court system today. I mean that, for half of the country, what happened that day was forgotten within 72 hours, and a new narrative was written wherein they were the victims of state oppression. It's impossible to overstate how bad this is. So yes, I have very little confidence, and that's been the case for eight years. I think it's justified by the story so far.
Chris,
I want to thank you for your hope honesty courage and trust reporting truth to power with evidence. Your astute courageous words written in the moment 3 years ago today are testament to your fundamental understanding of our representational form of living democracy.
I mistakenly thought VP Pence refused to get in the USSS car because he feared where he and his family would be taken.
I now think he refused to get in the car because he had a job to do and he new if he left others, standing back and standing by would gladly step up and take over the VP job that day. Miraculously VP Pence and many other office holders of the US Constitution resumed their official duties 1/6/21 performing the electoral vote count after the insurrectionists had left the building.
Over 140 DCCP were injured and some died of their injuries. One insurrectionist was shot climbing thru a Capitol broken window. I too truly believe Trump's actions on J6 justly include him in the insurrection as the sole beneficiary of the insurrectionists goal for the 45th president to remain in power.
Justice Thomas's spouse Virginia, was an integral principal actor organizing and leading the insurrection and he should recuse because of her J6 insurrectionist activities. So far he has refused to recuse.
I hope the rest of the US Supreme Court justice's affirm CO's Supreme Ct decision barring Trump from the ballot because the CO trial court rightly found Trump engaged in insurrection. Our US Constitution's 14th Amendment article 3 unequivocally bars insurrectionists from holding constitutional offices again.
Thank you for sharing your texts from three years ago as well as WAPO’s perspective then. The question is what happened to the shared understanding that an insurrection unfolded that day—that it was an attempt to nullify the legal votes of 80 million Americans by a coup, with fake electors? Obviously, those 80 million votes were not considered sacred by trump and his followers.
Now our country’s future is going to be subjected to the parsing of the 14th amendment by the likes of Thomas, who will not recuse himself even though his wife was one of the cheerleaders at the ellipse on January 6th. He can’t because that would make it more likely to be 4-4 decision. What about kavanaugh? Trump’s lawyer noted how hard trump worked to get him on the court. What’s that about?
Yes, what happened to the shared understanding. It lasted a few days, and then it was back to the same old. The lesson wasn't learned, which means we can expect a repeat, and we can expect it to be worse.
I agree that Trump did in fact engage in insurrection. The question is who gets to enforce it? Is it a state or federal jurisdictional matter? The Amendment was added to prohibit state actors from circumventing federal supremacy and to prohibit anyone who engaged in rebellion and insurrection from ever holding office. Seems to me the states rights absolutists on the SC are going to have a hard time convincing themselves that the federal government is the authority with regard to deciding whether Trump engaged in insurrection. And that states do not have the right. And yet, they may well decide it is a federal jurisdictional issue.
The Chief Justice has been whining about the unfair treatment of the courts credibility for quite some time. If he wishes to restore some credibility, he'll have to insist that Thomas recuse in this case. Or, it will only add to the courts impartial credibility problem.
I almost feel bad for Roberts. Almost. He's trying, or he thinks he's trying, to hold the country together by taking a middle road between the two sides. In my view he's conceding too much to the conservative side but that's to be expected given his background (and the composition of the court). The thing is, he's all alone in this, and the only thing to be found in the middle of the road is roadkill. When he was the median vote, it might have been effective, but now it just looks feckless.
Thank you for saying this clearly. It is what I, a mere citizen unschooled in the law, see as certainly correct. Lawyers need to weigh in as you have. Plain language and plain facts very occasionally make the law equally plain, even to laymen. Thanks again.
Thank you for this wonderful reflection on the January 6th anniversary and how it pertains to the Colorado case. I have to think that the Conservatives on the Court will want to avoid making this an argument over whether Trump’s actions constitute insurrection. Despite the inherent weakness of the other arguments for overturning the Colorado decision, I suspect that’s where the Conservatives will try to form a ruling. Might also see them make a head nod towards Congress’s decision not to impeach as well to try and provide themselves with cover.
My guess is the Court’s first interest is self preservation and that it will kick the can down the road, e.g., by saying it may have been an insurrection but Colorado did not apply a sufficiently rigorous standard or process to support that conclusion so they get a do-over. By which time maybe he’ll have been found guilty of something or defeated at the polls or something else.
The Maine decision and other states considering what to do makes a remand tough-I think they’ll want to do this once. There are really no outs on this. My guess is that this will need to be a Roberts opinion. If he starts asking insurrection hypotheticals during the oral arguments, then we might know where they are headed.
So my question is will Thomas recuse himself. I mean if he votes in favor of Colorado his freebies will dry up and his “best friend” will never speak to him.bet he doesn’t and votes in Tfg favor
None of the justices did when they took this case up.
His billionaire pals will forgive him. He still will serve their interests.
I really hope SCOTUS at the very least says it’s undeniable that Jan6 was an insurrection. Teri Kanefield put out a blog about it that made me much less hopeful that Judge Luttig and Jill Wine Banks are right in their confidence the CO decision will stand. Did you read her latest?
The US code provides that a judge must disqualify himself/herself when his/her impartiality "might reasonably be questioned". I know Thomas won't recuse, even though the best case for recusal lies with him. I don't believe (yet), however, that Kavanaugh, Coney-Barrett, or Gorsuch lack principle (unlike Thomas). If they are reluctant to participate in a typical Alito-style contortion of judicial diarrhea to support keeping Trump on the ballot, they each could recuse. And they can cite to the statements of Trump's spokesmodel attorney, talking about how Kavanaugh is expected to "step up" for Trump, who "went through hell" to get him appointed, for support.
(*** I am fully aware that there's little chance in hell that this happens ***)
It's clearly necessary. But I doubt they will do it.
I think the 25A provision argument is reasonably set forth and convincing. OTOH, I can understand if someone thinks it does not apply. There is a sensible argument it is generally understood to apply to someone who is medically unable. The language is more open-ended. I do think the Constitution's understanding develops over time. On 1/6, at least, he showed himself incompetent.
The 14A, sec. 3 arguments made repeatedly are much shoddier. Jamelle Bouie (NYT), Kevin Kruse (Susbstack), and now Gerard N. Magliocca (multiple places, including an excellent NYT op-ed) are just a few cases where we see it is very clear he committed insurrection.
The "history and tradition" (that this Court claims to care about) provides clarity. The "presidents don't apply" is nonsense. Worrying about "democracy" is especially asinine for someone who came into power with less than three million popular votes than his opponent.
Gerard N. Magliocca notes Congress has the power to declare amnesty. They could have added further enforcement rules like they did to clarify what the 13th, 14th, and 15th Amendments meant. They did not. Supreme Court shouldn't "save us" like they did in Bush v. Gore.
Thomas should recuse. For those who want, I say more on my own substack.
I am thr fortunate one to have found your articles. Thank you!!!
How tough is it to do thr right thing... every choice costs.
The systems we have and will have in the future are here in every decision or court law that is made president.
Have we arrived to the place we cannot make a decision. Unless it took place in our past?
Cannot er site current truth and the facts?
Whole lot of "must" and "should" in that article. Not a lot of "will." Anyone think they actually will do all this stuff they must and should do? I sure don't.
Yes. I am not, to my knowledge, a majority of the Supreme Court. And there’s going to be plenty more coverage between now and oral arguments a month from now. Seemed important to lay out my position on the big picture going into it all.