46
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Supreme Court rules Donald Trump can remain on Colorado ballot (gifted link)
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- Title
- Live Updates: Trump Prevails in Supreme Court Challenge to His Eligibility
- Published
- Mar 4 2024
- Word count
- 1443 words
You can read the opinion here. If you want to understand the differences between the majority's opinion and the minority's concurrence (Sotomajoy, Kagan, and Jackson), you should flip to page 15.
Essentially, the minority concurrence agrees with the majority that it would be inappropriate for a single state actor to play such a monumental role in shaping the outcome of a national election. This reasoning is sufficient to decide the case, and so the liberal Justices would have left the decision at that. Indeed, as a jab at their more conservative colleagues, they quote from Dobbs as if to drill this point home:
Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 348 (2022) (ROBERTS, C. J., concurring in judgment).
However, the per curiam decision goes further than this -- it argues that Section 3 of the Fourteenth Amendment is not "self-executing", i.e. the Court has ruled that Section 3 may only be enforced through federal legislation. The liberal Justices point out that this is nonsensical:
They further argue that there is little historical evidence to support this reading of the Fourteenth Amendment and that
Justice Barrett has also submitted a concurring opinion, agreeing with the liberal Justices that the excursion into whether Section 3 is "self-executing" was an unnecessary diversion by the majority. However, rather than criticize the majority, she instead pleads for civility:
Ah yes. When the powerful are threatened, we must let bygones be bygones, turn the temperature down, and embrace national unity. When regular people are threatened with losing their civil rights, then full steam ahead. Where was judicial restraint when the reproductive rights and bodily autonomy of every person in the country was suddenly upended? Sweeping changes are fine when they only affect the commoners. But when the elites are threatened with accountability, suddenly we need to have restraint.
To be fair, Barrett voted against hearing the Dobbs case for similar reasons as she gave in the quoted text. I don't disagree with your sentiment in general, but she has been somewhat consistent in arguing the court should stop looking for problems.
She voted against hearing it, but in the end those concerns disappeared when it came time to actually vote in the Dobbs case. If she really did believe that the court shouldn't be making sweeping changes, then she should not have voted to overturn Roe. The most logical interpretation is that she was simply lying or grandstanding in her vote against hearing the case. After, she certainly lied in her confirmation hearing about respecting the precedent of Roe. She's lied under oath, on camera, in front of the entire nation, repeatedly. The word of that woman is mud. Nothing she says should be taken as truthful.
She voted against hearing it when there were already plenty of votes to ensure the court would hear it. This helped build her credentials as a fair and impartial justice, concerned only about the law. Her hope was that people would, like in your instance here, cite her act as evidence that she is unbiased and fair. She could score easy political points with a vote that meant nothing. But when it came time to actually rule on the real case, restraint and impartiality flew right out the window, replaced with fundamentalist religious dogma.
One of the reasons regular folks (perhaps rightly) hate lawyers and the judicial system, is that lawyers are very nuanced and narrow in the statements they often make.
I don't know the exact quotes, but if Barrett said exactly "I respect the precedent in Roe v Wade," there's many ways that can be a true statement, and not inconsistent with her vote in Dobbs.
For example, and I'm just riffing here, she could hold that the specific legal precedent in Roe, which is based on a right to privacy, was not applicable in Dobbs (which I haven't read or followed, so don't know its basis).
It's also not inconsistent to have resisted hearing a case, but then, once the case is heard, ruling based on whatever rubric she believed appropriate.
More generally, she could believe, and with intelligently reasoned ideas, that the Roe precedent has nothing to do with abortion, and only with relationships with doctors, and she could support that precedent. She could also claim, reasonably, to "respect" a precent, but, also reasonably, not feel constrained to follow a precedent in every case where it might be applicable.
Personally, I believe most on the bench more or less want to do the right thing, but some, especially Gorsuch, Kavenaugh, and Thomas, have some very distorted, self-centered assumptions and beliefs that are gravely harmful to everyone, including themselves. But I make no mistake, and suggest everyone else avoid it too: they are all very, very smart, smarter than all but a few of the best lawyers, judges, and professors I have encountered, and also very savvy.
I am reminded of this article on George W. Bush.
Your final two paragraphs make me wish for a graph ranking SCOTUS judges (including recently deceased and retired ones) by hypocrisy (may need separate rankings when defining by prior similar rulings or by public statements outside the docket).
A libertarian-minded court watcher I occasionally listen to says that looking at Thomas v. Scalia dissents is always interesting, as those are usually Thomas calling Scalia a fake originalist.
Not quite what you said, but in a graduate class we had to read supreme court rulings and write case briefs, and you developed a feel and appreciation for the legal skill of some justices over others. In particular, both Scalia and RBGs writing were immediately discernable. They were both whip smart and incisive in their reasoning. Generational talents that were not replaced with their equals.
That's one view. Another is that she didn't think there was reason to review it, but once she had to make a determination, did so I'm accordance with her own standards. I don't see a dissonance between those positions.
But it's all speculative. Neither of us has any greater knowledge or insight than the public statements given. I'm certainly not happy with the rulings of the court, but I find greater blame with other justices.
Anyone have any idea where this is going?
Why are conservative judges so keen to set a precedent that Section 3 of the Fourteenth Amendment is not "self-executing?"
Are they setting a precedent for Equal Protection issues? E.g. if there is no law against discriminating against Trans, then it's not against the constitution?
I think it's just genuinely how they read it. If you read the 14th Amendment, Section 5 really sounds like Congress has to execute it.
If you interpret section three like that, then what is the point of any of the amendments after the civil war, as they all have that clause. If congress must pass legislation to grant african americans the right to vote, or LGBT the right not to be discriminated against, then the amendments are simple suggestions. The 14th Amendment has stronger language than any other, in that it says congress must pass legislation by 2/3rds majority to remove such disability.
Edit: I fully support the unanimous ruling, it is the conflicting opinions I would like to understand better.
Double Edit: The conflicting opinions could simply be judicial frustration at the inconsistent way plain text reading and originalist thought has been applied to the constitution. Because as The New Yorker clearly lays out, if any case called for a different ruling using conservative judges originalist interpretations, it was this one.
Edit: better to read @NoPants's comment below.
This ruling makes it extremely unlikely that Trump will be disqualified from holding office, as it precludes nearly all other avenues for challenging his candidacy. Now Trump can only be disqualified through legislation passed by Congress, which neither exists nor has any chance of passing before the election.
This ruling means, for instance, that even if the DC trial were to somehow conclude before the election, and even if the jury were to find Trump guilty and most definitely an insurrectionist, and even if the finding were to survive on appeal to the Supreme Court, that finding would have no bearing on his qualification under the Fourteenth Amendment until Congress passes a law explicitly saying so.
The Supreme Court helpfully noted that such a law already exists: 18 USC s 2383:
"Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States."
Whoops, you're right. My bad!
Although I thought Trump is extremely unlikely to be convicted of breaking this law for inciting Jan 6th, as he has a powerful free speech argument.
And I think the kept himself at arms length regarding the fake electors thing.
Laughs in Bush v. Gore
It makes sense that the 14th amendment was implemented with the goal of removing/restricting rights of states and therefore it wouldn't be reasonable to conclude that the amendment gives states the power to enforce it. It also makes sense to an extent the criticism the liberal justices have on the per curiam that reasoning section 5 requires legislation in order to enforce it doesn't hold water.
I do to an extent understand the reasoning of "If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more." because the legislation isn't very specific as to how it gets enforced, the court is reading in a limited enforcement that doesn't actually exist in the amendment and that it restricts other potential ways of enforcement that they may not foresee.
I do think it's a bit of a cop-out for the court to not take the opportunity to conclude at least some ways of enforcement that would be within the authority of the 14th amendment, but I understand that the court cannot necessarily account for all possible variables that exist in a hypothetical. It might say something would be legal not accounting for a particular variable and then when a real situation occurs that includes that variable, their hypothetical assumptions might cloud the interpretation of the real case at hand. I think that means in the end, it's not for the court to surmise possible enforcement of the 14th amendment but rather perhaps scholars or some federal elected officials or such propose methods.
Ultimately that does leave me still with the question of, how is section 3 of the 14th amendment supposed to be enforced?
Ok this caught my attention. I looked up the Enforcement Act of 1870.
From here you can find:
OK so it looks like there was a federal process to declare candidates ineligible according to section 3 of the 14th amendment, but it was later removed? I wonder what the history of that is.
Wikipedia cites this article.
And this article states:
I can't find further details on how this earlier process was repealed. It seems there was a process that federal prosecutors could use to remove someone like Trump from the ballot, but that those provisions were later repealed by Congress? I'm curious what the history and justification for that was.
That William and Mary Bill of Rights Journal (which is what that link goes to) is interesting in how much of this ruling actually flies in the face of what that scholar or scholars who contributed to that journal interpreted around this situation.
For example, here's one excerpt from it.
Well this ruling by the Supreme Court explicitly shoots that down. Which makes me wonder then, if the states cannot enforce the Constitution with regards to federal officers on the ballot, how would the federal government do it? What is the mechanism for the federal government to dictate who is on the ballots in the state?
The argument in this article is that states have a duty to enforce the Constitution. Now if we run with that interpretation, then the Supreme Court instead should have ruled on whether or not Colorado state enforcement was justified on the basis of whether Trump had indeed committed insurrection. This of course is the vastly more politically fraught ruling the court would have ruled on and within the minority concurrence you can see an element of reservation in making rulings surrounding that subject.
There's also a bit of interpretation they have in that journal about how to define what is an insurrection, and how that would play a role in Section 3 enforcement, which is particularly ironic considering the circumstances.
Effectively the argument here is that the Insurrection Act gives the President the power to respond to insurrection and rebellions, which ultimately makes the President the best way to determine when an insurrection has actually occurred. If a President has intervened, then there was an insurrection, and if they did not, then there was not an insurrection.
Of course there's also the "giving aid or comfort to the enemies thereof" part, but that could be concluded that insurrectionists are enemies, and if there's no insurrection, then there's no enemies to give aid or comfort to.
I too tried looking for this information and couldn't find anything specific. From what I pieced together, it seems there was a large rewrite to federal code, and thus seemingly the repeal to that section may not have been targeted so much for its content but rather for whatever larger goals there were in the rewrite, but I haven't been able to find more specific information about that.
I found this in the Southwestern Law Journal in the "Survey of the Federal Judicial Code - 1948 revision and first interpretive decisions"
I've seen the reviser's notes mentioned a few times which is seemingly where the explanations for the rewrites exist, though I haven't found the reviser's notes myself. A repeal could potentially be a clearly expressed intention of that, or it could be considered redundant to something else, but presumably the answer would lie in the reviser's notes.
I think this as the right call. This technique legal strategy is far more likely to be weaponized by the right, so setting a precedent allowing it would have been detrimental to democracy in the long run.
I don't trust this court, so I doubt that this means that a conservative majority decision might not have a significant impact on the election later on. But I do think the backlash from Dobbs decision had been significant enough that the justices are avoiding crossing some lines.
It is wild to me that things are so polarized that these conversation even need to happen.
That is the very logic the leaders of the Wiemar Republic used when deciding not to hold the Nazi party accountable. Don't rock the boat. Any precedent we set can be used against us later. Give them a slap on the wrist and let the voters sort it out.
Right wing authoritarians don't need the blessings of centrists or the prior precedent of liberals to break all precedent and abuse procedures. How many Democratic presidents have their been who were tempted to pull what Trump did, but resisted because they didn't want to set a precedent? Obama and Hillary certainly could have. But they didn't.
The strategy of not holding right wingers accountable for fear that right wingers might later abuse power is a strategy that has proven time and time and time again to fail. This is like not trying someone for murder because you fear that if you do so, someone might later falsely charge you with a murder you didn't commit. Is it possible? Sure. But we can't let fear of future abuses of justice deny us from applying actual justice. It's cowardly, utterly craven, and ultimately does nothing to prevent right wing authoritarians from abusing legal process in the future. Trump and his ilk are fascists, plain and simple. They have no respect for legal precedent and will trample over it to accomplish their twisted aims.
My prediction? Democrats will show great restraint now. But the next time a Republican wins the presidency, they will still try to get Democrats disqualified under bogus vague "insurrection" claims. Democrats will show restraint, and Republicans will return their kindness with a stab in the back. Aka, the same thing that always happens.
This is the opposite of that, actually, although I see why it would look similar. The entire point of the amendment is to take power from the states because it's easy for them to push these sorts of agendas. Yes, it also makes it easier for insurrectionists to get on the ballot in some states, but keep in mind that in this scenario, they would be on the ballot in half of the states anyway. This also makes it so it's harder for, say, Alabama to decide that Joe Biden is an insurrectionist because he stole Trump's rightful victory and remove him from the ballot.
You missed their point entirely.
They weren't saying that this specific action is the same thing as the Weimar Republic, they were saying that the Weimar Republic chose not to go after Nazis for fear of being gone after later — only for exactly that to occur anyway, because Nazis don't care and Nazis are hateful.
The details of what, precisely, is not being done for the sake of "avoiding precedent" is immaterial. The point remains that fascists can and will do abusive things to you regardless of whether or not you gave them precedent for it. Letting them bully and threaten you into doing nothing just lets them get away with whatever they want.
"You go high, we go low."
I agree with this concern, but when systems that rely on convention are broken by those who are willing to flaunt convention, I'm not sure giving up on the system is a win. I agree that Trump should be held accountable, but I don't know if removing him from the ballot is holding him accountable. Certainly there are other mechanisms for that (the many court cases against him), though they grind slowly and are subject to their own limitations and corruptions. And for better or worse, there are plenty of people who support him as a candidate, even in Colorado.
The deeper and more concerning thing is that he can enjoy so much popularity despite doing such terrible things pretty openly. It seems to me that many Republicans would have him in jail tomorrow if they thought they could keep their base, but the base loves him. So (for the most part), the desire for power wins out over principles, and they follow in his wake, hoping he will finally crash and they can pick up the pieces.
The attachment to him is mystifying to me. Things I've read about the value of a strong man leader to the religious right and the Christian nationalist agenda are the best explanations I've seen for this so far, but it seems like there must be more to it than that. Maybe we don't understand just how effective the social media bubbles are in isolating people.
But it's more than just Trump and more than just the US. There are right-wing resurgences all over the place. I want there to be an explanation that goes beyond, "society periodically loses it's shit and lets the dark thoughts run wild", but if there is, I haven't seen it.
They don’t care about precedent or worry about their logic being used against them in the long run. The system is pure Calvinball and the GOP just makes up new rules as they go. They’ll do away with the filibuster and every other aspect of the government that enables minority rule the moment it becomes inconvenient to them.
Link to a PDF of the decision
Gifted WaPo link from @psi:
https://wapo.st/49WwC55
I think this is pretty significant given how much it touches and merits its own post, especially because it was a highly technical ruling and there should likely be a lot of discussion of that alone.
The decision was unanimous, but the reasoning varied.
Court Opinion - Trump v Anderson
I can't help but feel that this is an (arguably) good outcome but a bad legal decision. The Court more and more seems to be debating the outcome of a ruling first and foremost and then working backwards to justify it. That makes sense when determining the constitutionality of administrative decisions or legislative statutes as the Constitution takes precedence, but when it comes to interpreting the Constitution itself things get more problematic.
The text of Section 3 is straightforward, and the context it was written in supports the straightforward interpretation. Whether or not a single state should be able to effectively decide an election by keeping a candidate off the ballot is a serious question, but it's not the one the Court should be weighing. The question is can they, not should they.
I'm legitimately afraid of what will become of this country if Trump wins, but I firmly believe that removing him from the ballot this way would have been catastrophic. It's good that the Court stopped it, but that shouldn't have been the consideration. To say that states can't do something because they shouldn't do it is to say that a part of the Constitution is invalid as written simply because we don't like it, and that is an authority that the Court should not have to exercise.
Maybe I'm just more interested in these things as I've gotten older and the reality is that the Court has always acted this way, but it really feels like the Court sees it's own opinion as the primary legal doctrine of this country and the Constitution as secondary. There have been other decisions where the majority opinion does this, but this feels like the most egregious example.
How so?
I don't really get their arguments about one state deciding the election. 1. That already happens and 2. How is Colorado (or any random state) kicking one person off the ballot deciding the election for the whole country?
Plenty of elections come down to one state. I'm not sure interpreting the Constitution should be done based on what you want to happen instead of what you think it says, but that would practically give legislatures in swing states like Georgia, Nevada, Michigan, and Pennsylvania the ability to decide elections instead of their voters.
You'd think the conservatives would be in favor of it then. Turns out it's not expedient in this particular situation, and we wouldn't want to displease Prince Donnie, would we?
Also, Congress always had the power to intervene and prevent a state from disqualifying a candidate. If the disqualification is contested, why not allow the disqualification and then have Congress undo it per section 3?
My interpretation is that we're taking this protection we had against insurrectionists and throwing it away. I think it's a lot better to have the country fail to decide on a leader than it is to elect someone so bad that states are trying to remove them from the ballot.
I think the decision is ridiculous. Section 5 doesn't say states can't disqualify people. It says Congress can create legislation. Section 3 doesn't say Congress gets to decide if someone is disqualified. It says Congress can undo such a decision.