The Supreme Court Did This to Itself
The Supreme Court is on a collision course with itself, and it’s not clear that the justices even know it. We are now witnessing a five-car pileup of Trump–slash–Jan. 6 cases that will either be heard by the Supreme Court or land on their white marble steps in the coming weeks. The court has already agreed to hear the case of Joseph Fischer, the former Pennsylvania cop accused of taking part in the Jan. 6 storming of the Capitol and assaulting police officers, to determine the scope of prosecutions for obstructing an official proceeding. The court’s already flirting with hearing a direct appeal by special counsel Jack Smith to speedily resolve Trump’s claims to absolute immunity for his actions in attempting to overturn the 2020 election. And a game-changer of a case came out of the Colorado Supreme Court on Tuesday that would knock the former president off of the Republican primary ballot in that state as a consequence of his involvement in the insurrection attempt on Jan. 6, which would also critically apply to the general election ballot next November. That ruling has to be settled by the high court in order to forestall, or affirm, other states’ efforts to do the same thing. Potential appeals of gag orders in criminal suits and doofy immunity claims in the E. Jean Carroll suit are all also winging their way to Chief Justice John Roberts’ workstation, and it’s not even 2024 yet.
Steve Vladek/”One First” on Substack:
The Law and High Politics of Disqualifying President Trump
Whether courts can disqualify presidential candidates under Section 3 of the Fourteenth Amendment is a legal *and political* minefield that the U.S. Supreme Court will now have to navigate
The upshot of these cases is that there are moments where the Supreme Court is doing more than just “law”; it’s doing high constitutional politics. And those moments tend to involve cases in which the country would best be served by rulings that appeal across the political and/or ideological spectrum. The Court has (badly) flubbed some of these moments—see, e.g., Bush v. Gore, supra. But that only reinforces the consequences for the Court of not taking the high politics of these kinds of cases seriously.
There’s an obvious response to this, and it’s also something I’ve written about before—the idea that the law ought to be first, last, and everything in between. “Let justice be done though the heavens fall.” I get that argument, even if I disagree with it. But what complicates matters even further for the current Court is that this mantra has, in recent times, become the mantra of conservatives—who have defended originalism and other features of their contemporary judicial philosophy on grounds, however persuasive, of ideological purity and apolitical-ness. Here, in the flesh, is a powerful example of a dispute in which it will be impossible for the Court to not be perceived as “political,” and so the focus shifts to whether the Court can issue a decision that avoids being perceived as “partisan.”
Lisa Needham/Public Notice:
How Gorsuch made the case for banning Trump from the ballot
Life comes at you fast.
Trump also tried to argue that he is not barred from running for office because he’s an insurrectionist but only from holding office as an insurrectionist. This is absurd on its face, and the Colorado Supreme Court was able to dispose of that argument thanks to Justice Neil Gorsuch.
Back in 2012, Gorsuch was a judge on the United States Court of Appeals for the Tenth Circuit. In that capacity, he wrote the panel opinion in Hassan v. Colorado. Hassan, a naturalized citizen, sued Colorado, arguing it was required to put him on the presidential ballot even though he was not a natural-born citizen and was therefore not constitutionally qualified to run for president. The Tenth Circuit ruled against him, with Gorsuch writing that states have “a legitimate interest in protecting the integrity and practical functioning of the political process” and that because of that, they can “exclude from the ballot candidates who are constitutionally prohibited from assuming office.” It’s that quote that makes its way into the Colorado Supreme Court opinion.
Bill Scher/Washington Monthly:
The Trump-Colorado Ballot Case Could Help Restore the Supreme Court’s Legitimacy
Or it could destroy it if the conservative justices restore him to the state’s ballot and let him delay—and possibly quash—the legal cases arrayed against him.
I am highly skeptical that the Supreme Court will step into this thicket and decree that Trump, or any candidate, can be disqualified without a conviction. But if it did, Trump couldn’t cry partisanship. (He could weave a convoluted Deep State/two-party duopoly conspiracy theory, but he couldn’t pin the blame on a single party’s judges.) With six of nine SCOTUS justices appointed by Republicans—and none of them remotely liberal or moderate in temperament like former Justices David Souter and John Paul Stevens—upholding the Colorado decision is one way the Court can prove it is above partisan politics.
But as the divided Colorado court shows, the question of what constitutes due process for alleged insurrectionists under the Fourteenth Amendment is debatable. The Supreme Court’s conservative supermajority might not risk harming its already soiled reputation by reinstating Trump on Colorado’s ballot.
However, if SCOTUS were to rule that due process has not been afforded Trump and is required, it must allow due process to proceed. That means acceding to Smith’s request for a speedy ruling on Trump’s claim that he’s immune from prosecution in the first place.
So this Colorado opinion is a BFD, sparking all sorts of opinion from across the political spectrum—as it should. Now imagine a Jack Smith conviction, tell me what the reaction would be, and explain how the polls now can predict anything when it comes to 2024.
George Conway/The Atlantic:
The Colorado Ruling Changed My Mind
The strongest argument for throwing Trump off the ballot is the weakness of the counterarguments.
Their points were strong. But much as I never want to see Trump near the White House again, I wasn’t quite buying them. The argument seemed somehow too good to be true. And frankly, from a political standpoint, it would be better for the country if Trump were thrashed at the polls, as I think he ultimately would be. There had to be a wrinkle. I just knew it.
But last night changed my mind. Not because of anything the Colorado Supreme Court majority said. The three dissents were what convinced me the majority was right.
The dissents were gobsmacking—for their weakness. They did not want for legal craftsmanship, but they did lack any semblance of a convincing argument.
For starters, none of the dissents challenged the district court’s factual finding that Trump had engaged in an insurrection. None of the dissents seriously questioned that, under Section 3 of the Fourteenth Amendment, Trump is barred from office if he did so. Nor could they. The constitutional language is plain. You can’t be president if you previously took an oath “as an officer of the United States … to support the Constitution of the United States” but “engaged in insurrection or rebellion” against, or have “given aid or comfort to the enemies of,” that Constitution or the nation it charters.
Elie Mystal/The Nation:
The Colorado Court’s Ruling Banning Trump From the Ballot Is Sharp as Hell
While the ruling will be overturned by the Supreme Court, the conservative justices will have to tie themselves into a knot to do it.
For true textualists, the text of Section 3 couldn’t be more clear. It says, in full:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
It doesn’t say “convicted” of insurrection. It doesn’t say “unless it makes Jonathan Chait uncomfortable.” It says what it says: Government officers who engage in insurrection cannot be officers of the government again.
David Frum/The Atlantic:
The Colorado Supreme Court Just Gave Republicans a Chance to Save Themselves
They should take it.
But the possibility of one more judicial appeal does not diminish the drama of what just happened—or the political potential.
The big winner from tonight’s decision is not President Joe Biden. The Colorado Supreme Court decision is not about the general election in November 2024. It’s about Colorado’s Republican primary. If the decision stands, the principal beneficiaries will be Trump’s Republican rivals, one of whom—Florida Governor Ron DeSantis, former New Jersey Governor Chris Christie, former South Carolina Governor Nikki Haley, or the entrepreneur Vivek Ramaswamy—will win Colorado’s delegates to the national Republican convention. If the decision is extended to other states, one of that roster will win those delegates too.
However, the decision is currently stayed by the Colorado court and as of this writing, sans SCOTUS intervention, Trump will almost certainly be on the primary ballot in Colorado.
Roger Parloff (X vis Threadreader) has an excellent dissection of what the Colorado Supreme Court did and what SCOTUS might do:
Some belated thoughts on the Colorado Supreme Court’s historic ruling Tuesday that Trump is disqualified from the presidency as an insurrectionist. I’ll start with the dessert and then get to the medicine. …
… Claiming that Trump didn’t “engage in” the insurrection also fails. Even if a SCOTUS justice isn’t willing to disqualify, he/she won’t try to make that argument. Doing so would enshrine their disingenuousness in the US Reports forever. …
The SCOCO majority wrote (with no dissents on this): “As our detailed recitation of the evidence shows, President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it …
Cliff Schecter on Vivek Ramaswamy: