1) The Court does not care if it looks silly. It doesn't care about much of anything the people think.
2) Since Roberts' ascension to Chief Justice, every single ruling from the Court has been to either further the short term electoral prospects of the GOP (too bad Dobbs blew up in their faces) and/or to improve the long term economic prospects of the .000001%. Given that, is the GOP better off in November with or without Trump? Is the .000001% better off with Trump on the ticket, or Trump on his way to prison? Answer those two questions and you can predict how they rule.
There is no legal basis for the Supreme Court to overturn Colorado. None. And so if they do overturn it, it would be the most nakedly political and ethically bankrupt decision in its history. And, as Prof. Snyder says, laughable.
Iām hopeful that because the strongest legal briefs supporting the ban on Trump were written by two fellow members of the Federalist Society--one of whom clerked for John Roberts--that will carry a lot of weight with the conservatives. If they ever want to be taken seriously by their peers in the legal profession again, they should listen to what both conservative and liberal scholars alike are saying about Section 3.
This is a case where the justices own self-interest lines up with the right legal decision. And for traditional conservatives like Roberts, it represents an opportunity both to save their party from Trump and also save the Republic for history. Do they have the courage? Enough of them just might.
I'll go a step farther. Not only is Clarence Thomas conflicted; he is himself culpable. His wife and former clerk--and current family friend, carried the fake electors scheme forward, a scheme that would necessitate the SCOTUS taking a position that the electors' question was "political." Hence the question of the several states' electors would be thrown to the respective state legislatures. It is inconceivable that they did this without Clarence Thomas' knowledge; and contorted reasoning of this kind has become a Thomas earmark. Lock them up.
The Professors increasing frustrations with the wayward state of our Union and with the ever more blatant audacity of the SCOTUS in doing the political bidding of the billionaire class and their Maga-Minions is palatable. People were put on the Court because they will remain deaf to the law, the constitution, and precedent. What scary times we live in! And I had thought we had experienced the worst in any of the following three: Bush vs. Gore, The Trump Election or January 6th.
Given the notorious rulings on gun control and the Citizens United case, inter alia, I would not anticipate being surprised by anything issued by the SCOTUS. Unfortunately Gƶdel's Incompleteness Theorem applies in spades to spoken language, so that something that appears to be transparent to the fine readers of this Substack might be completely at odds with the interpretations assigned by others. Indeed, that is why true democracies have constitutional courts in the first place.
It is unfortunately now demonstrable that the process for picking justices for the SCOTUS, which relies on the good will and ethical behavior of both the person who nominates the candidates and those who advise and consent, is deeply flawed. In the devolution of our democracy we have reached the point where neither is a given.
I've coined a new word: "Griftiness" -- what Alito and Thomas indulge in. Watch them shape themselves into the shape of a pretzel in trying to overturn the Colorado Supreme Court decision.
I have heard that often a 'legal' decision involves 'backwards engineering'. You know the outcome you want, so you now fit that into a legal explanation. The justices are smart and well educated. My guess is that they will find a way to fit this square peg (Griswold v Anderson) into their round hole (textualism, originalism). I do not think their decision will spring from those philosophies, but I do think their rationale for that decision will.
Many of those opposed to upholding the Colorado (and later Maine) ruling do so because they demand that the voters should be deciding this issue, not the courts. This exposes a fundamental question about our Republic. The Founders were justifiably concerned about depending on the 'wisdom' of the voting public (even in the beginning when that group largely included only white, male, property owners). But they essentially crossed their fingers and went ahead and designed a blueprint for just such a system. So now what are we to make of a situation in which a substantial number of voters appear to support a man who, should he regain the Oval Office, would clearly seek to undermine the very principles those same voters claim to believe in? How do we protect our system of government when so many either don't understand how it is supposed to work or simply don't want it to work as it was intended because they have gotten the idea in their heads that it doesn't do for them what they think it ought to be doing? It was just this kind of narrow, parochial thinking that concerned the Founders most. This whole situation is about a fundamental and large scale misunderstanding of what we were designed to be and about those who for their own selfish and often nefarious purposes are driving that misunderstanding. This is not a problem that can be solved in a voting booth. We are indeed at a tipping point unlike any in our history. No matter which way we go, there will likely be trouble, the like of which we haven't yet experienced. We are at war with ourselves through a fundamental weakness in the democratic process, one in which, perhaps, an over-emphasis on individual rights to the cost of the community, and the resultant increasingly divisive beliefs that emphasis helps to generate causes democracies to eat themselves alive from the inside out. It happened in the original one, ancient Athens, and it could easily happen here. I still believe, with the man I believe to have been the greatest American, that our system is 'the last best hope of earth'. But if too many of us simply don't understand what that means, we could, as he also noted as early as 1838, 'die by suicide'.
How about a followup column, about how the court and legal system caved into, and then served, the Nazis, and how very quickly that came about once Hitler took power. People today keep talking about our checks and balances, as if we are safe. Not so, when good people step aside and leave the compliant scumbags to run the country. How quickly Hitler silenced, outlawed, and drove away his critics and opponents is stunning when one looks at the timeline in 1933. Most people today don't (and won't) see how easily that can happen. The Nazis technically had law and order, just of the fascist type.
I so not see how they can get out of this one. A court, the Supreme Court of Colorado, has ruled, based on a hearing by the lower court in which both sides presented arguments and evidence, that Trump is not eligible because he engaged in insurrection. They could probably legitimately get out of it by turning it over to the Congress by agreeing with the lower court but advocating that only the Congress, also because of the text of the 14th amendment, could alter their decision by deciding by a two thirds vote to put Trump onto the ballot.
As a professor, I taught the Constitution for 20 years. Still, not being a constitutional lawyer, I refrain from publicly assessing constitutional issues that are brought before the Supreme Court.
Though Harvard Professor Lawrence Tribeās assessments are more in line with my political biases, I find Linda Greenhouseās cool-handed analyses more accurate.
Another splendid statement of the realities and the huge stakes at play in the Colorado decision and in whether Thomas recuses or not. Will the Court really allow itself to look as silly and worthy of contempt as it will if it gets this decision wrong, i.e., partisan? Has Roberts no influence/control/shame?
I think we should all hold off on the reflexive prognosticating about what the Court will decide in the Armstrong case, take a deep breath and consider a few factors--------
First and foremost, this or any Court will seek a way to shave down the sharp edges of any decision deemed "political". If they can get away with punting on the case procedurally, they will. I am certain that the majority of the Court, like the majority of the Country, would want to let the voters decide the election, not the Court. I'm not saying that a decision upholding the Colorado Supremes would reflect a desire to have the Court decide the election, far from it. Just pointing out the old reality that the Justices read the papers. Or, in this day and age, read their twitter ("X" marks the racist billionaire spot) feed.
Thus, I think they may boot the case on "ripeness" grounds, i.e., determining that given the number of similar challenges in other states, with various methodologies of dealing with elections, the case is not yet ready for full review.
Second, let's focus on the text of Section 3 of the 14th: therein, the following circumstances demand exclusion from running for office of those who having previously taken an oath to support the Constitution----those who "have engaged in insurrection or rebellion against the same (Constitution & US), or given aid or comfort to the enemies of thereof".
Critical here is the explicit distinction between insurrection and rebellion. In the wake of the Civil War, "rebellion" was obvious. Yet "insurrection", while less obviously self-explanatory, is clearly a lower degree of activity than rebellion. Thus the argument that an "insurrection" must rise to Civil War-esque sustained armed conflict is false.
Third, Section 3 also provides an explicit bypass around the stark prohibition of running for office. If the Congress votes by a 2/3 majority, it may exempt the otherwise disqualified candidate from the disqualification due to insurrection, rebellion, etc.
This provision is not discussed nearly enough. Those who argue that the Colorado court is depriving the People unjustly of a candidate of their choice should read this provision. This is their outlet.
Finally, while the concept of "insurrection" does seem to cry out for clarification, it is important to note that the federal district court in Colorado tried the matter, with Trump's side arguing that he did not commit insurrection. They lost that argument.
Signed, sealed, delivered. The Supremes are deciding the propriety of the Colorado Supreme Court's decision, not any decision from other states. So they are free to affirm the Colorado Supreme Court decision, and in fact they are virtually obligated to do so, absent some finding of lack of discretion in the trial court's factual findings.
I will go out on the proverbial limb here and say we will see one of the following decisions from the Supremes---
Either a procedural punting on "ripeness" or "justiciability", or a 6-3 decision upholding the Colorado Supremes, with Kavanaugh, Barrett and Roberts joining Sotomayor, Kagan and Jackson in the majority.
I have already commented on your last post, Timothy, and pointed out that it is not as simple as you make it sound. Honestly, you sound as if you have receded into a MSNBC bubble!
Yes yes yes, Clarence Thomas is ridiculous. And so is/was George Santos, and so is Robert Menendez. Shamelessness is bipartisan in 2023, and political cowardice (looking at you, Chuck Schumer!) is, as well.
The Colorado decision is a tough one, legally speaking. Most likely, SCOTUS will side with Trump, on legal grounds, for all the reasons I stated in my last post. This is a blow to all of us who want Trump to disappear forever - but it is decidedly NOT a sign of a broken or corrupt court. Rather, any suggestion of this sort helps in further undermining the legitimacy of our institutions which are holding by a thread. Do we want to be progressive bomb throwers? or do we want to save our republic? Maybe it is time to read your 20 theses of ON TYRANNY again...
Couple of things...
1) The Court does not care if it looks silly. It doesn't care about much of anything the people think.
2) Since Roberts' ascension to Chief Justice, every single ruling from the Court has been to either further the short term electoral prospects of the GOP (too bad Dobbs blew up in their faces) and/or to improve the long term economic prospects of the .000001%. Given that, is the GOP better off in November with or without Trump? Is the .000001% better off with Trump on the ticket, or Trump on his way to prison? Answer those two questions and you can predict how they rule.
There is no legal basis for the Supreme Court to overturn Colorado. None. And so if they do overturn it, it would be the most nakedly political and ethically bankrupt decision in its history. And, as Prof. Snyder says, laughable.
Iām hopeful that because the strongest legal briefs supporting the ban on Trump were written by two fellow members of the Federalist Society--one of whom clerked for John Roberts--that will carry a lot of weight with the conservatives. If they ever want to be taken seriously by their peers in the legal profession again, they should listen to what both conservative and liberal scholars alike are saying about Section 3.
This is a case where the justices own self-interest lines up with the right legal decision. And for traditional conservatives like Roberts, it represents an opportunity both to save their party from Trump and also save the Republic for history. Do they have the courage? Enough of them just might.
I'll go a step farther. Not only is Clarence Thomas conflicted; he is himself culpable. His wife and former clerk--and current family friend, carried the fake electors scheme forward, a scheme that would necessitate the SCOTUS taking a position that the electors' question was "political." Hence the question of the several states' electors would be thrown to the respective state legislatures. It is inconceivable that they did this without Clarence Thomas' knowledge; and contorted reasoning of this kind has become a Thomas earmark. Lock them up.
The Professors increasing frustrations with the wayward state of our Union and with the ever more blatant audacity of the SCOTUS in doing the political bidding of the billionaire class and their Maga-Minions is palatable. People were put on the Court because they will remain deaf to the law, the constitution, and precedent. What scary times we live in! And I had thought we had experienced the worst in any of the following three: Bush vs. Gore, The Trump Election or January 6th.
Meanwhile, J6 āQAnon Shamanā wants his horns back from the FBI. š #LockāemUp
I know this is presumptuous but I would offer the historical name for the decision, āthe Petard Ruling.ā
Given the notorious rulings on gun control and the Citizens United case, inter alia, I would not anticipate being surprised by anything issued by the SCOTUS. Unfortunately Gƶdel's Incompleteness Theorem applies in spades to spoken language, so that something that appears to be transparent to the fine readers of this Substack might be completely at odds with the interpretations assigned by others. Indeed, that is why true democracies have constitutional courts in the first place.
It is unfortunately now demonstrable that the process for picking justices for the SCOTUS, which relies on the good will and ethical behavior of both the person who nominates the candidates and those who advise and consent, is deeply flawed. In the devolution of our democracy we have reached the point where neither is a given.
I've coined a new word: "Griftiness" -- what Alito and Thomas indulge in. Watch them shape themselves into the shape of a pretzel in trying to overturn the Colorado Supreme Court decision.
I have heard that often a 'legal' decision involves 'backwards engineering'. You know the outcome you want, so you now fit that into a legal explanation. The justices are smart and well educated. My guess is that they will find a way to fit this square peg (Griswold v Anderson) into their round hole (textualism, originalism). I do not think their decision will spring from those philosophies, but I do think their rationale for that decision will.
Many of those opposed to upholding the Colorado (and later Maine) ruling do so because they demand that the voters should be deciding this issue, not the courts. This exposes a fundamental question about our Republic. The Founders were justifiably concerned about depending on the 'wisdom' of the voting public (even in the beginning when that group largely included only white, male, property owners). But they essentially crossed their fingers and went ahead and designed a blueprint for just such a system. So now what are we to make of a situation in which a substantial number of voters appear to support a man who, should he regain the Oval Office, would clearly seek to undermine the very principles those same voters claim to believe in? How do we protect our system of government when so many either don't understand how it is supposed to work or simply don't want it to work as it was intended because they have gotten the idea in their heads that it doesn't do for them what they think it ought to be doing? It was just this kind of narrow, parochial thinking that concerned the Founders most. This whole situation is about a fundamental and large scale misunderstanding of what we were designed to be and about those who for their own selfish and often nefarious purposes are driving that misunderstanding. This is not a problem that can be solved in a voting booth. We are indeed at a tipping point unlike any in our history. No matter which way we go, there will likely be trouble, the like of which we haven't yet experienced. We are at war with ourselves through a fundamental weakness in the democratic process, one in which, perhaps, an over-emphasis on individual rights to the cost of the community, and the resultant increasingly divisive beliefs that emphasis helps to generate causes democracies to eat themselves alive from the inside out. It happened in the original one, ancient Athens, and it could easily happen here. I still believe, with the man I believe to have been the greatest American, that our system is 'the last best hope of earth'. But if too many of us simply don't understand what that means, we could, as he also noted as early as 1838, 'die by suicide'.
Dr. Snyder -
How about a followup column, about how the court and legal system caved into, and then served, the Nazis, and how very quickly that came about once Hitler took power. People today keep talking about our checks and balances, as if we are safe. Not so, when good people step aside and leave the compliant scumbags to run the country. How quickly Hitler silenced, outlawed, and drove away his critics and opponents is stunning when one looks at the timeline in 1933. Most people today don't (and won't) see how easily that can happen. The Nazis technically had law and order, just of the fascist type.
I so not see how they can get out of this one. A court, the Supreme Court of Colorado, has ruled, based on a hearing by the lower court in which both sides presented arguments and evidence, that Trump is not eligible because he engaged in insurrection. They could probably legitimately get out of it by turning it over to the Congress by agreeing with the lower court but advocating that only the Congress, also because of the text of the 14th amendment, could alter their decision by deciding by a two thirds vote to put Trump onto the ballot.
As a professor, I taught the Constitution for 20 years. Still, not being a constitutional lawyer, I refrain from publicly assessing constitutional issues that are brought before the Supreme Court.
Though Harvard Professor Lawrence Tribeās assessments are more in line with my political biases, I find Linda Greenhouseās cool-handed analyses more accurate.
Another splendid statement of the realities and the huge stakes at play in the Colorado decision and in whether Thomas recuses or not. Will the Court really allow itself to look as silly and worthy of contempt as it will if it gets this decision wrong, i.e., partisan? Has Roberts no influence/control/shame?
Greetings to All!
I think we should all hold off on the reflexive prognosticating about what the Court will decide in the Armstrong case, take a deep breath and consider a few factors--------
First and foremost, this or any Court will seek a way to shave down the sharp edges of any decision deemed "political". If they can get away with punting on the case procedurally, they will. I am certain that the majority of the Court, like the majority of the Country, would want to let the voters decide the election, not the Court. I'm not saying that a decision upholding the Colorado Supremes would reflect a desire to have the Court decide the election, far from it. Just pointing out the old reality that the Justices read the papers. Or, in this day and age, read their twitter ("X" marks the racist billionaire spot) feed.
Thus, I think they may boot the case on "ripeness" grounds, i.e., determining that given the number of similar challenges in other states, with various methodologies of dealing with elections, the case is not yet ready for full review.
Second, let's focus on the text of Section 3 of the 14th: therein, the following circumstances demand exclusion from running for office of those who having previously taken an oath to support the Constitution----those who "have engaged in insurrection or rebellion against the same (Constitution & US), or given aid or comfort to the enemies of thereof".
Critical here is the explicit distinction between insurrection and rebellion. In the wake of the Civil War, "rebellion" was obvious. Yet "insurrection", while less obviously self-explanatory, is clearly a lower degree of activity than rebellion. Thus the argument that an "insurrection" must rise to Civil War-esque sustained armed conflict is false.
Third, Section 3 also provides an explicit bypass around the stark prohibition of running for office. If the Congress votes by a 2/3 majority, it may exempt the otherwise disqualified candidate from the disqualification due to insurrection, rebellion, etc.
This provision is not discussed nearly enough. Those who argue that the Colorado court is depriving the People unjustly of a candidate of their choice should read this provision. This is their outlet.
Finally, while the concept of "insurrection" does seem to cry out for clarification, it is important to note that the federal district court in Colorado tried the matter, with Trump's side arguing that he did not commit insurrection. They lost that argument.
Signed, sealed, delivered. The Supremes are deciding the propriety of the Colorado Supreme Court's decision, not any decision from other states. So they are free to affirm the Colorado Supreme Court decision, and in fact they are virtually obligated to do so, absent some finding of lack of discretion in the trial court's factual findings.
I will go out on the proverbial limb here and say we will see one of the following decisions from the Supremes---
Either a procedural punting on "ripeness" or "justiciability", or a 6-3 decision upholding the Colorado Supremes, with Kavanaugh, Barrett and Roberts joining Sotomayor, Kagan and Jackson in the majority.
I have already commented on your last post, Timothy, and pointed out that it is not as simple as you make it sound. Honestly, you sound as if you have receded into a MSNBC bubble!
Yes yes yes, Clarence Thomas is ridiculous. And so is/was George Santos, and so is Robert Menendez. Shamelessness is bipartisan in 2023, and political cowardice (looking at you, Chuck Schumer!) is, as well.
The Colorado decision is a tough one, legally speaking. Most likely, SCOTUS will side with Trump, on legal grounds, for all the reasons I stated in my last post. This is a blow to all of us who want Trump to disappear forever - but it is decidedly NOT a sign of a broken or corrupt court. Rather, any suggestion of this sort helps in further undermining the legitimacy of our institutions which are holding by a thread. Do we want to be progressive bomb throwers? or do we want to save our republic? Maybe it is time to read your 20 theses of ON TYRANNY again...