Thank you Professor Snyder. Your sharing of research and resources make us informed and smarter. You are my trusted source for what is happening here and abroad. I’ve learned much from your books, writings, and your Ukraine class via YouTube. Bravo you.
I strongly suspect that as Antonin Scalia played with words instead of original intentions in the Heller decision, which has made our lives so much more dangerous, the present Court will do so again in this case, with the potential for the same. I do hope I'm mistaken.
It amazes me that the discussion I am hearing is whether he is barred from RUNNING! The British question, "Is he unfit to stand?" Is there a difference between running and standing? Thank you for all these articles.
I started my lawyer life doing the historical background research - as an undergrad - for the origins of privacy in being "secure in their persons, houses, papers and effects against unreasonable searches and seizures" - in 1976-77 while interning for the law firm that represented Barlow's Inc. in a Fourth Amendment case, so I feel completely at home in the history of the constitution.
During the discussions of whether or not the president is an officer, not a single justice mentioned the amicus briefs written by historians and lawyers who specialize in Reconstruction. And when Jason Murray was asked about it, he didn't refer to what the authors of those briefs wrote. Those briefs tell the story of of 14/3 masterfully and brilliantly. Not even the D-appointed justices brought them up.
The justices, just like many media outlets that report on presidential elections as though they were horse races, treated the case before them as just another case. Everything is normal here. The want of seriousness about the dangers we're facing in this country is unforgivable.
Many thanks for your help understanding our current situation. I often fear it may be preaching to the choir, but you arm us with the facts so that your wisdom and knowledge may reach others.
Thanks also for your work helping Ukraine. The importance of US support cannot be exaggerated. If only our Republican Legislators could have your wisdom.
I listened to the arguments on CSpan. Many of the majority were dismissive not only of Colorado's case but of the lawyer. Over the years, I've listened to many arguments (ThankYou CSpan) and I've never heard anything like it. Almost like a fraternity hazing. It was his first SC case and they steamrolled him. I think all the justices were resentful of having to hear and decide this case at all. They were behaving as though it was Colorado's fault, rather than Trump's, for putting them in an unprecedented situation. Of course, the majority is more comfortable overturning precedent in order to degrade democracy, than setting precedent to protect democracy. I think they'll decide 9-0 in Trump's favor - to punt and to warn off any other states who might think of making them work too hard.
The oral arguments are over, and based on what we have heard it seems highly likely that SCOTUS will disagree with you, Timothy. But not only that - it appears that the three liberal judges also disagree, and that this may be a unanimous decision.
Now - before I continue, let me state that I abhor Donald Trump. I consider him an existential danger not just to Ukraine but to our very republic. I start with this statement hoping that the following will be heard...just heard. We can disagree, of course - but we need to be able to hear each other.
I have been troubled, Timothy, by the certitude with which you judge this case. And by the certitude of those commenting over the last 3 months - I have had spirited exchanges with some of you. Many constructive ones, a few obnoxious remarks notwithstanding.
Today our liberal judges expressed precisely the skepticism I have expressed in these exchanges. This may help, ironically: help you see that your absolutist positions were erroneous. I wrote this on Jan 8th, the very last time I bothered commenting:
"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!
...
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..."
If this decision goes 9:0, as it appears to go after this morning's hearings, then the Thinking About... community has two options to consider:
We can either conclude that not only the usual suspects...Clarence Thomas, Gorsuch, Kavanaugh et cetera...are corrupt. No, the liberal judges are corrupt as well. Or intimidated/bullied. Or legally inept. How else could they not see the light in a case that was so crystal clear, right?
The alternative option is to conclude that we were wrong. The skepticism of the three liberal judges helps us understand that this was indeed a complex case, and that there are very good legal arguments -as expressed this morning- against the Colorado decision.
To repeat my question from a month ago: Do we want to be progressive bomb throwers? Do we want to malign the integrity of the entire court, after today (and after the inevitable verdict) - or do we want to reconsider our passionately held opinions?
A big choice - and the choice we make may help tilt the November election, for or against Trump.
You are of course correct in all that you wrote. However, I should point out that there will be utter chaos if he is disqualified. If Biden beats Trump fair and square, the country has spoken. But disqualifying him will create doubts, uncertianties, chaos and the MAGA followers will double down and claiom political motivation and cheating. To get rid of Trump, it has to come down to the ballot box.
connects important dots, provides opportunity for thinking through alternative outcomes
this is just to think out loud, not a finished effort, with everyone present:
This and other articles to which I have pointed, by way of wanting to understand others' perspectives and to obtain a conscious rational foot-hold on these distinctly different understandings. Each reveals a sincere grasp of fact and law which together form a sort of conscious coherence, but which consciously depend on distinct sets of assumptions about prudent interests and prudent outcomes.
Does this seem to imply that having the Constitution does not also mean having only one political society with only one set of laws and political norms? It would seem so. Prof Snyder has addressed this circumstance in essays that look at 'self-understanding' and ethical or value systems in the context of which social and political normative standards and institutional forms are legitimated.
My own sense of reasoned commitment is with the views that Prof Snyder presents, supported as these views are by William Baude and Michael Stokes Paulsen, "The Sweep and Force of Section Three," University of Pennsylvania Law Review, 14 August 2023 article on Sec 3 and by the historical events context to which Prof Snyder (and others, see "Trump v. Anderson: Writings on Section 3 of the Fourteenth Amendment" ) points that present both US domestic and other nation's experiences during the emergence of political movements and leaders that 'corrode' and undermine democratic constitutional systems. Especially relevant to me in RE the latter corrosive effects are:
"Brief of Experts on Democracy" (Ruth Ben-Ghiat, Sheri Berman, Larry Diamond, Rachel Kleinfeld, Steven Levitsky, Timothy Snyder), 30 January 2024;
"Brief of American Historians," 29 January 2024.
To these I would, again, point to Alan Guelzo's history, Fateful Lightning: A New History of the Civil War and Reconstruction (Oxford U Press, 2012).
14.3 is a prudent constitutional approach to an historically real threat to constitutional governance.
Trump's brand of political choice, which is corrosive to both the Constitution and rule of law, culminated in his choices to reject the Constitution in RE constitutionally legal electoral process and outcome and in RE promoting violent interference in the formal, constitutional legitimizing of the electoral process and outcome to enable orderly political transition. He brings 14.3 disqualification on himself.
In his “The Electoral Count Reform Act and Section 3”, Magliocca explains that two situations may combine to confuse the making of a ruling:
absence of comprehensive understanding by some Justices of the Supreme Court of the Electoral Count Reform Act of 2022 (“ECRA”);
and, consequences of the fact that "...ECRA did not create an independent cause of action".
Magliocca explains, "...the danger is that the Court may be unaware that there is even a problem because the details of the ECRA were not presented to them in any of the briefs" and "...In Trump, though, the Supreme Court may hold that states are barred from providing a cause of action to enforce Section Three. And there is no federal cause of action to enforce Section Three. This would mean that an “aggrieved” candidate could not invoke the ECRA judicial process for a Section Three claim and could only go to the Joint Session of Congress. The judicial review provision would be stymied, and chaos could result" and " there may be a meaningful difference for ECRA purposes between a holding in Trump that Congress must provide a cause of action to enforce Section Three against presidential candidates versus a holding that says that Congress need only authorize such Section Three enforcement".
The upshot, the event of "...a Trump victory in November will lead to a constitutional crisis culminating—ironically enough—in a challenge raised before the Joint Session of Congress that counts the electoral votes on January 6th,2025. The Electoral Count Reform Act of 2022 (“ECRA”) is national legislature that was supposed to prevent this kind of train wreck, but the interplay of the Act and the Court’s probable opinion in Trump may frustrate Congress’s intent".
An excerpt: "...the one common factor that united the voting rights decisions produced by the Roberts court has been their striking willingness to rewrite the text of one of the most celebrated laws ever to be passed by Congress."
In Trump v Anderson, we are confronted by another issue; I'm clear on that. I will continue thinking through what it is here that isn't being made explicit. How does Justice Roberts see Trump v Anderson in the context of the character of democratic American civil society both under the Constitution and within government by the States?
"Before the full Senate considers acting on the nomination of Judge Roberts, the American people have a right to know precisely how his appointment to the Supreme Court would impact their rights, their freedoms and their lives. "
and
"Judge Roberts’ expansive view of administrative power to suspend fundamental due process protections ...raises serious questions not only about Judge Roberts’ views on the separation of powers but also on basic principles of civil and human rights."
and
"
LCCR urges the Committee to carefully question Judge Roberts on whether he would respect precedent on matters of well-settled law, such as Brown v. Board of Education,10 Miranda v. Arizona,11 Plyler v. Doe,12 Baker v. Carr,13 Roe v. Wade,14 Lemon v. Kurtzman,15 Swann v. Charlotte-Mecklenburg Board of Education,16 Engel v. Vitale 17 and National Labor Relations Board v. Jones & Laughlin Steel Corporation.18 Our nation simply cannot afford to return to a pre-1930s interpretation of the U.S. Constitution or the rights and liberties that it guarantees.
The stakes could not be higher. The Supreme Court is closely divided on cases involving some of our most basic rights and freedoms. The American people want and deserve to know that any new Supreme Court justice will be committed to protecting individual rights, and will put our freedoms ahead of any political agenda."
Of course, there is now much and troubling history. At this moment, however, as does Sec 3, we must publicly look ahead and make more than adequate preparations for those who, from within, would commandeer interpretation of interpretation of the Constitution. Partisanship and personal prejudice are not reasoned bases for conducting government under the Constitution. Instead, we the people can and would be better off inclusively to now reframe this debate on Sec 3 to point to its very limited but effective function, while expanding our understanding of the distributed, balanced reasoned approach to democratic self-understanding and necessary legislation to expand conscious cooperation and to avoid by careful management significant disagreements of understanding and choices of action.
I would be grateful for your observations and questions.
Thanks again to Prof Snyder for providing so many tools for informed and reasoned appraisal of the events and the historical and constitutional context.
Are the Justices in need of improving context? Can this be also done in American public awareness? Is this a question that might facilitate the many political efforts to finally begin to turn most Americans toward using constitutional approaches to democratic politics, facilitating cooperation and managing differences?
The Justices are putting us all at risk if the current political divisiveness and tendencies toward factional violence and confrontation are not given an explicit place in their considers. It is not a secret that the prudent efforts to put into the Constitution the Fourteenth Amendment were firmly grounded in an explicit recognition of abiding, dangerous divisions and violent potential turns in confrontations.
In the case of former Pres Trump and of supporters of his who continue to publicly explicitly deny the legitimacy of the 2020 elections results and deny the intent of the violent occupation of the US Capitol on Jan 06 2021, can any American make a case with which the Justices would concur that it is both factual- and constitutionally sound-thinking to ignore see Sec 3 as a prudent and necessary self-effecting tool? Former Pres Trump and his supporters are not affirming the priority of the Constitution as the political and governance tool and statement of understanding of federal separation of functioning powers (or, better of functioning inter-related reasoned political agencies). The Justices must affirm and make explicit that the Constitution is this and that it is this that is at risk, it is this risk that Sec 3 clearly and properly addresses.
Trump and his supporters present us with a 'guilty until accused' situation. That presentment is an explicit attempt to game the federal system and the tensions, along with means of promoting cooperation and reasoned management of governance relations between States as governments and the US government. Of course the people of any and all States have an interest in the full maintenance and functional use of the Constitution to effect reasoned democratic governance. In the face of violent, organized effort promoted by the then elected and sitting President and explicitly aimed at subverting and replacing constitutional authority and procedure by which elected officials transition into office and out of office, Sec 3 provides focused means for governmental, not factional, not arbitrary, constitutional governance defense from within those offices and official capacities to protect and use the Constitution for preparing for and doing elections.
I am grateful to Prof Snyder and others who make as clear and as reasoned from fact and historical experience as it can be clear that "we can have the Constitution or we can have Trump", in this case by means of effecting Sec 3
It is not that I don’t believe you, Ann. You make as good a case as anyone could. I simply disagree.
And while you are correct that you are a lawyer and I am not - foolish for me to try to out-lawyer you here!- I am an academic scientist, and thus I know a thing or two about evidence. In medicine, you can make very elaborate cases for a given belief - and cite tons of literature in top tier journals. Have tons of key opinion leaders on your side- AND STILL BE WRONG. Often it is time…better evidence, Inconsistencies that cannot be resolved… which point to an entire set of beliefs to be wrong.
It teaches you humility, a decade or longer in medicine (or any other science, for that matter). As the saying goes: “There are only two types of doctors. Those who say they could be wrong - and those who have not realized that yet.”
The same applies here. Our SCOTUS justices are grappling with a very real dilemma. You bring up very valid points, but so does the other side.
The three dissenting (Dem appointed) justices in Colorado and our three Dem appointed SCOTUS judges, all with tons of highly ambitious and enormously resourceful clerks who desperately want Trump to be barred, have of course read all the amicus briefs. And unlike me, they understand exactly how to interpret every single legal argument. AND YET THEY DISAGREE.
That is my larger point.
If you want to walk away from this ruling believing that not just 6 conservative SCOTUS judges but also the 3 liberal judges are all corrupt and/or inept and/or intimidated-bullied, then Good Luck! Makes for a very dark view of our judiciary.
I think it is prudent -no, wise- for SCOTUS to punt on this. 100 years from now people will look back and recognize this: A court pushing a deeply political question back to the political realm.
Now, could this mean that, as a consequence, Trump gets elected and we see a modern repeat of Germany after 1933? Yes, and it is terrifying. I am of German heritage - nothing worries me more.
But SCOTUS believes that Congress and, ultimately, the voters need to settle this - and I think they are wise to do so.
Thank you Professor Snyder. Your sharing of research and resources make us informed and smarter. You are my trusted source for what is happening here and abroad. I’ve learned much from your books, writings, and your Ukraine class via YouTube. Bravo you.
I strongly suspect that as Antonin Scalia played with words instead of original intentions in the Heller decision, which has made our lives so much more dangerous, the present Court will do so again in this case, with the potential for the same. I do hope I'm mistaken.
It amazes me that the discussion I am hearing is whether he is barred from RUNNING! The British question, "Is he unfit to stand?" Is there a difference between running and standing? Thank you for all these articles.
Thanks for indexing these.
Superb work.
I started my lawyer life doing the historical background research - as an undergrad - for the origins of privacy in being "secure in their persons, houses, papers and effects against unreasonable searches and seizures" - in 1976-77 while interning for the law firm that represented Barlow's Inc. in a Fourth Amendment case, so I feel completely at home in the history of the constitution.
Marshall v. Barlow's, Inc., 436 U.S. 307 (1978)
During the discussions of whether or not the president is an officer, not a single justice mentioned the amicus briefs written by historians and lawyers who specialize in Reconstruction. And when Jason Murray was asked about it, he didn't refer to what the authors of those briefs wrote. Those briefs tell the story of of 14/3 masterfully and brilliantly. Not even the D-appointed justices brought them up.
The justices, just like many media outlets that report on presidential elections as though they were horse races, treated the case before them as just another case. Everything is normal here. The want of seriousness about the dangers we're facing in this country is unforgivable.
If SCOTUS leaves tRump on the ballot, letting the voters decide, then how is a 14th amendment ever enforced? Do we even have a 14th amendment?
Many thanks for your help understanding our current situation. I often fear it may be preaching to the choir, but you arm us with the facts so that your wisdom and knowledge may reach others.
Thanks also for your work helping Ukraine. The importance of US support cannot be exaggerated. If only our Republican Legislators could have your wisdom.
Thank you! This is valuable information!
I listened to the arguments on CSpan. Many of the majority were dismissive not only of Colorado's case but of the lawyer. Over the years, I've listened to many arguments (ThankYou CSpan) and I've never heard anything like it. Almost like a fraternity hazing. It was his first SC case and they steamrolled him. I think all the justices were resentful of having to hear and decide this case at all. They were behaving as though it was Colorado's fault, rather than Trump's, for putting them in an unprecedented situation. Of course, the majority is more comfortable overturning precedent in order to degrade democracy, than setting precedent to protect democracy. I think they'll decide 9-0 in Trump's favor - to punt and to warn off any other states who might think of making them work too hard.
The oral arguments are over, and based on what we have heard it seems highly likely that SCOTUS will disagree with you, Timothy. But not only that - it appears that the three liberal judges also disagree, and that this may be a unanimous decision.
Now - before I continue, let me state that I abhor Donald Trump. I consider him an existential danger not just to Ukraine but to our very republic. I start with this statement hoping that the following will be heard...just heard. We can disagree, of course - but we need to be able to hear each other.
I have been troubled, Timothy, by the certitude with which you judge this case. And by the certitude of those commenting over the last 3 months - I have had spirited exchanges with some of you. Many constructive ones, a few obnoxious remarks notwithstanding.
Today our liberal judges expressed precisely the skepticism I have expressed in these exchanges. This may help, ironically: help you see that your absolutist positions were erroneous. I wrote this on Jan 8th, the very last time I bothered commenting:
"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!
...
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..."
If this decision goes 9:0, as it appears to go after this morning's hearings, then the Thinking About... community has two options to consider:
We can either conclude that not only the usual suspects...Clarence Thomas, Gorsuch, Kavanaugh et cetera...are corrupt. No, the liberal judges are corrupt as well. Or intimidated/bullied. Or legally inept. How else could they not see the light in a case that was so crystal clear, right?
The alternative option is to conclude that we were wrong. The skepticism of the three liberal judges helps us understand that this was indeed a complex case, and that there are very good legal arguments -as expressed this morning- against the Colorado decision.
To repeat my question from a month ago: Do we want to be progressive bomb throwers? Do we want to malign the integrity of the entire court, after today (and after the inevitable verdict) - or do we want to reconsider our passionately held opinions?
A big choice - and the choice we make may help tilt the November election, for or against Trump.
Timothy,
Your take on how arguments went today?
You are of course correct in all that you wrote. However, I should point out that there will be utter chaos if he is disqualified. If Biden beats Trump fair and square, the country has spoken. But disqualifying him will create doubts, uncertianties, chaos and the MAGA followers will double down and claiom political motivation and cheating. To get rid of Trump, it has to come down to the ballot box.
Today this was published:
Gerard Magliocca: “The Electoral Count Reform Act and Section 3”
February 15, 2024, 7:11 am Supreme Court , guest post from Rick Hasen
https://electionlawblog.org/?p=141452
connects important dots, provides opportunity for thinking through alternative outcomes
this is just to think out loud, not a finished effort, with everyone present:
This and other articles to which I have pointed, by way of wanting to understand others' perspectives and to obtain a conscious rational foot-hold on these distinctly different understandings. Each reveals a sincere grasp of fact and law which together form a sort of conscious coherence, but which consciously depend on distinct sets of assumptions about prudent interests and prudent outcomes.
Does this seem to imply that having the Constitution does not also mean having only one political society with only one set of laws and political norms? It would seem so. Prof Snyder has addressed this circumstance in essays that look at 'self-understanding' and ethical or value systems in the context of which social and political normative standards and institutional forms are legitimated.
My own sense of reasoned commitment is with the views that Prof Snyder presents, supported as these views are by William Baude and Michael Stokes Paulsen, "The Sweep and Force of Section Three," University of Pennsylvania Law Review, 14 August 2023 article on Sec 3 and by the historical events context to which Prof Snyder (and others, see "Trump v. Anderson: Writings on Section 3 of the Fourteenth Amendment" ) points that present both US domestic and other nation's experiences during the emergence of political movements and leaders that 'corrode' and undermine democratic constitutional systems. Especially relevant to me in RE the latter corrosive effects are:
"Brief of Experts on Democracy" (Ruth Ben-Ghiat, Sheri Berman, Larry Diamond, Rachel Kleinfeld, Steven Levitsky, Timothy Snyder), 30 January 2024;
"Brief of American Historians," 29 January 2024.
To these I would, again, point to Alan Guelzo's history, Fateful Lightning: A New History of the Civil War and Reconstruction (Oxford U Press, 2012).
14.3 is a prudent constitutional approach to an historically real threat to constitutional governance.
Trump's brand of political choice, which is corrosive to both the Constitution and rule of law, culminated in his choices to reject the Constitution in RE constitutionally legal electoral process and outcome and in RE promoting violent interference in the formal, constitutional legitimizing of the electoral process and outcome to enable orderly political transition. He brings 14.3 disqualification on himself.
In his “The Electoral Count Reform Act and Section 3”, Magliocca explains that two situations may combine to confuse the making of a ruling:
absence of comprehensive understanding by some Justices of the Supreme Court of the Electoral Count Reform Act of 2022 (“ECRA”);
and, consequences of the fact that "...ECRA did not create an independent cause of action".
Magliocca explains, "...the danger is that the Court may be unaware that there is even a problem because the details of the ECRA were not presented to them in any of the briefs" and "...In Trump, though, the Supreme Court may hold that states are barred from providing a cause of action to enforce Section Three. And there is no federal cause of action to enforce Section Three. This would mean that an “aggrieved” candidate could not invoke the ECRA judicial process for a Section Three claim and could only go to the Joint Session of Congress. The judicial review provision would be stymied, and chaos could result" and " there may be a meaningful difference for ECRA purposes between a holding in Trump that Congress must provide a cause of action to enforce Section Three against presidential candidates versus a holding that says that Congress need only authorize such Section Three enforcement".
The upshot, the event of "...a Trump victory in November will lead to a constitutional crisis culminating—ironically enough—in a challenge raised before the Joint Session of Congress that counts the electoral votes on January 6th,2025. The Electoral Count Reform Act of 2022 (“ECRA”) is national legislature that was supposed to prevent this kind of train wreck, but the interplay of the Act and the Court’s probable opinion in Trump may frustrate Congress’s intent".
I am wondering what Justice Roberts has in mind? To me, it seems some of his questions and observations have an indirect or distracted tone.
I'm thinking with the help of an appraisal in the Guardian some months ago: https://www.theguardian.com/us-news/2023/jun/10/john-roberts-us-supreme-court-voting-rights-decision
An excerpt: "...the one common factor that united the voting rights decisions produced by the Roberts court has been their striking willingness to rewrite the text of one of the most celebrated laws ever to be passed by Congress."
In Trump v Anderson, we are confronted by another issue; I'm clear on that. I will continue thinking through what it is here that isn't being made explicit. How does Justice Roberts see Trump v Anderson in the context of the character of democratic American civil society both under the Constitution and within government by the States?
Also note the LLI look at Trump v Anderson: https://www.law.cornell.edu/supct/cert/23-719
LII Supreme Court Bulletin, Trump v. Anderson
PS
An additional important appraisal of Roberts' views and concerns about them is provided at:
https://civilrights.org/resource/the-nomination-of-john-g-roberts-jr-to-the-supreme-court-2/#
excerpts:
"Before the full Senate considers acting on the nomination of Judge Roberts, the American people have a right to know precisely how his appointment to the Supreme Court would impact their rights, their freedoms and their lives. "
and
"Judge Roberts’ expansive view of administrative power to suspend fundamental due process protections ...raises serious questions not only about Judge Roberts’ views on the separation of powers but also on basic principles of civil and human rights."
and
"
LCCR urges the Committee to carefully question Judge Roberts on whether he would respect precedent on matters of well-settled law, such as Brown v. Board of Education,10 Miranda v. Arizona,11 Plyler v. Doe,12 Baker v. Carr,13 Roe v. Wade,14 Lemon v. Kurtzman,15 Swann v. Charlotte-Mecklenburg Board of Education,16 Engel v. Vitale 17 and National Labor Relations Board v. Jones & Laughlin Steel Corporation.18 Our nation simply cannot afford to return to a pre-1930s interpretation of the U.S. Constitution or the rights and liberties that it guarantees.
The stakes could not be higher. The Supreme Court is closely divided on cases involving some of our most basic rights and freedoms. The American people want and deserve to know that any new Supreme Court justice will be committed to protecting individual rights, and will put our freedoms ahead of any political agenda."
Of course, there is now much and troubling history. At this moment, however, as does Sec 3, we must publicly look ahead and make more than adequate preparations for those who, from within, would commandeer interpretation of interpretation of the Constitution. Partisanship and personal prejudice are not reasoned bases for conducting government under the Constitution. Instead, we the people can and would be better off inclusively to now reframe this debate on Sec 3 to point to its very limited but effective function, while expanding our understanding of the distributed, balanced reasoned approach to democratic self-understanding and necessary legislation to expand conscious cooperation and to avoid by careful management significant disagreements of understanding and choices of action.
I would be grateful for your observations and questions.
So, here it is Feb 12 2024.
Thanks again to Prof Snyder for providing so many tools for informed and reasoned appraisal of the events and the historical and constitutional context.
Are the Justices in need of improving context? Can this be also done in American public awareness? Is this a question that might facilitate the many political efforts to finally begin to turn most Americans toward using constitutional approaches to democratic politics, facilitating cooperation and managing differences?
The Justices are putting us all at risk if the current political divisiveness and tendencies toward factional violence and confrontation are not given an explicit place in their considers. It is not a secret that the prudent efforts to put into the Constitution the Fourteenth Amendment were firmly grounded in an explicit recognition of abiding, dangerous divisions and violent potential turns in confrontations.
In the case of former Pres Trump and of supporters of his who continue to publicly explicitly deny the legitimacy of the 2020 elections results and deny the intent of the violent occupation of the US Capitol on Jan 06 2021, can any American make a case with which the Justices would concur that it is both factual- and constitutionally sound-thinking to ignore see Sec 3 as a prudent and necessary self-effecting tool? Former Pres Trump and his supporters are not affirming the priority of the Constitution as the political and governance tool and statement of understanding of federal separation of functioning powers (or, better of functioning inter-related reasoned political agencies). The Justices must affirm and make explicit that the Constitution is this and that it is this that is at risk, it is this risk that Sec 3 clearly and properly addresses.
Trump and his supporters present us with a 'guilty until accused' situation. That presentment is an explicit attempt to game the federal system and the tensions, along with means of promoting cooperation and reasoned management of governance relations between States as governments and the US government. Of course the people of any and all States have an interest in the full maintenance and functional use of the Constitution to effect reasoned democratic governance. In the face of violent, organized effort promoted by the then elected and sitting President and explicitly aimed at subverting and replacing constitutional authority and procedure by which elected officials transition into office and out of office, Sec 3 provides focused means for governmental, not factional, not arbitrary, constitutional governance defense from within those offices and official capacities to protect and use the Constitution for preparing for and doing elections.
I am grateful to Prof Snyder and others who make as clear and as reasoned from fact and historical experience as it can be clear that "we can have the Constitution or we can have Trump", in this case by means of effecting Sec 3
It is not that I don’t believe you, Ann. You make as good a case as anyone could. I simply disagree.
And while you are correct that you are a lawyer and I am not - foolish for me to try to out-lawyer you here!- I am an academic scientist, and thus I know a thing or two about evidence. In medicine, you can make very elaborate cases for a given belief - and cite tons of literature in top tier journals. Have tons of key opinion leaders on your side- AND STILL BE WRONG. Often it is time…better evidence, Inconsistencies that cannot be resolved… which point to an entire set of beliefs to be wrong.
It teaches you humility, a decade or longer in medicine (or any other science, for that matter). As the saying goes: “There are only two types of doctors. Those who say they could be wrong - and those who have not realized that yet.”
The same applies here. Our SCOTUS justices are grappling with a very real dilemma. You bring up very valid points, but so does the other side.
The three dissenting (Dem appointed) justices in Colorado and our three Dem appointed SCOTUS judges, all with tons of highly ambitious and enormously resourceful clerks who desperately want Trump to be barred, have of course read all the amicus briefs. And unlike me, they understand exactly how to interpret every single legal argument. AND YET THEY DISAGREE.
That is my larger point.
If you want to walk away from this ruling believing that not just 6 conservative SCOTUS judges but also the 3 liberal judges are all corrupt and/or inept and/or intimidated-bullied, then Good Luck! Makes for a very dark view of our judiciary.
I think it is prudent -no, wise- for SCOTUS to punt on this. 100 years from now people will look back and recognize this: A court pushing a deeply political question back to the political realm.
Now, could this mean that, as a consequence, Trump gets elected and we see a modern repeat of Germany after 1933? Yes, and it is terrifying. I am of German heritage - nothing worries me more.
But SCOTUS believes that Congress and, ultimately, the voters need to settle this - and I think they are wise to do so.