Before you get ready to throw your phone or computer across the room, take heart: In many ways sending the Trump Colorado Ballot case to the Supreme Court has been a win/win situation. If the court decides to uphold the Colorado ruling — and pundits are now saying that there’s not a snowball’s chance in hell that will happen — then Trump will be off the ballot. But if the Colorado court is overturned, then Trump can and will be defeated at the ballot box. That may in fact be the right way to go. That way he can never claim that he was sabotaged by the judiciary. He may claim that anyway, with respect to the other cases that he is on track to lose, but he cannot blame the Supreme Court for keeping him off the ballot. Daily Beast:
One of the issues the justices are likely to explore is Trump’s claim that Colorado cannot disqualify him from appearing on its 2024 ballot because Section 3 of the 14th Amendment is not self-executing; it can only be enforced by congressional legislation, which does not exist.
Is this correct?
“Friend of the court” briefs submitted by two groups of distinguished historians offer compelling evidence that Trump is wrong and Section 3 is “self-executing,” automatically disqualifying those who violate it from holding office.
The historians’ evidence includes statements made by the 14th Amendment’s framers and supporters during congressional debates. This evidence confirms that Section 3 not only barred ex-Confederates from holding office, it also guarded “against the corruption of government by anyone involved in future insurrections who had taken an oath to support the U.S. Constitution,” and required no additional congressional action to impose that disqualification. […]
Trump offers competing historical evidence supporting his argument that he cannot be disqualified because no congressional legislation enforcing Section 3 exists. For example, Trump relies on the 1869 judicial opinion in Griffin’s Case—a murder conviction where the convicted Griffin argued that his sentence was invalid because Section 3 automatically and retroactively disqualified the Virginia trial judge, invalidating his official acts. […]
Trump’s lawyers argue that “Chief Justice Chase held that congressional implementing legislation is the only way that section 3 may be enforced, and that state and federal courts are powerless to enforce section 3 absent congressional enforcement legislation under section 5” of the 14th Amendment.
This sentence exemplifies how lawyers manipulate history to support their arguments. Each statement in that sentence in Trump’s Supreme Court brief is true, but each is also misleading. Samuel Chase was indeed chief justice in 1869, but this was not a Supreme Court opinion creating binding national precedent for future disputes. Chase decided the case alone, acting as a circuit court judge handling legal disputes in Virginia.
This is the basic lay of the land. Now if you go over to Meidas Touch, Ron Filipkowski says:
It seems clear that this decision from the Colorado Supreme Court is going to be reversed, the only question is whether the decision will be made narrowly on a single point of contention from Trump, or if the court will make a very broad decision that no state is able to enforce Section 3 of the 14th Amendment because that is solely the purview of Congress to set a procedure for federal courts or to provide specific authority and procedure for the states to apply.
Justices Thomas, Alito, Kavanaugh, Coney-Barrett, Gorsuch and Kagan were clearly skeptical of Colorado’s position. Justices Sotomayor and Jackson seemed to agree with Colorado on some points, while Chief Justice Roberts didn’t tip his hand with his limited questioning. This could even end up being a unanimous decision with Kagan concurring with most of the decision of the majority and Jackson and Sotomayor concurring on the very narrow point that Congress must enact enabling language with uniform enforcement procedure for each state.
There is also a good rundown in the linked-to piece about what each judge asked and how Filipkowski arrived at his conclusion.
Wait for the feathers to fly. This is going to be a hotly contested decision and would have been either way that it went. As I said at the outset, be of good cheer because if Trump would have been kept off the ballot, that would have been constitutionally correct. If he’s kept on the ballot, that’s fine as well: we’ll defeat him at the ballot box and that may, in fact, be the best way to go.
Beyond Trump, there is still the paradox of a president not being included under the auspices of the 14th Amendment. This isn’t finished yet.
I had hoped that at least the Liberal Justices would do the RIGHT THING, & accept that DON THE CON committed Insurrection & Sedition & that the country needs to be protected against him being allowed to run for office again.
Even though there is obviously no hope that the CORRUPT CONSERVATIVES EVER WILL. They are perfectly happy to continue taking away the rights of Americans & let DON THE CON finish destroying the country & Constitution.
Love the graphic!
The most interesting legal take I have heard was on Lawrence O’Donnell last night. Yale law professor Akhil Amar (one of Kavanaugh’s professors) reminded us that all of the states having different rules for access to the ballot is not chaos. “It is Federalism, it is the Electoral College, it is the Constitution.” It is also not new. In 1860, Lincoln was not on any state ballot south of Virginia. Colorado and Maine had different paths to excluding Trump. Michigan law couldn’t keep Trump off the primary ballot, but will be able to revisit the general election ballot. Nebraska and Maine are not winner-take-all for the electoral college. The real chaos would be if SCOTUS says states cannot do their own thing…this would upend the Federalism the conservative justices love so much.
Minor correction but those “conservative justices” do NOT “love” the idea of “Federalism.” They only “love” it when it (or, more accurately, their TAKE on it) falls in line with their own ideology.
Yes… I saw that commentary on The Last Word also. It was brilliant. I kept thinking… I hope the damn SCOTUS Justices are watching this also… they certainly needed the information. Based on some of their comments, they don’t seem to realize that states have always had control over their elections.
What’s most frustrating is how the CORRUPT CONSERVATIVES push for states’ rights when it comes to making decisions about women’s bodily autonomy, but don’t want states doing their own thing when it comes to tossing a CRIMINAL IMBECILE like DON THE CON off the ballot. I didn’t even see Gorsuch coming to the defense of his own state. CO.
I know above picture of SCOTUS is an old one… before Ketanji Brown Jackson joined Court & Breyer is still pictured.
A political snake like Don Don complains and challenges any legal headwinds confronting him. The political optimists, like the liberals and reasonable conservatives, will expect change, either way the chief justices rule and how well the guardrails hold up to the buffering. The current and legitimate POTUS will simply adjust his sails, due to what eventuates from Don Don’s attempt to slither, duck and weave to avoid the consequences from those self-inflicted headwinds of his.
When you have a political system that allows traitors into the presidency,(Nixon, Reagan, bush 1&2, trump), to appoint criminals, traitors and rapists into the ultimate law making position for LIFE…what can you realistically expect? Exactly what we have. FACT!
“As I said at the outset, be of good cheer because if Trump would have been kept off the ballot, that would have been constitutionally correct. If he’s kept on the ballot, that’s fine as well: we’ll defeat him at the ballot box and that may, in fact, be the best way to go.”
The ballot-box defeat would surely be the best way to weaken Trump’s guaranteed post-election whining and obfuscation. The reason that many of us were keeping our fingers crossed over the Colorado case is the widespread fear that Trump might just win the Electoral College in November. I personally think the risk is overrated right now by political journalists looking for gabby headlines, but some Democrats are still worried. IMHO, the real reason not to stress out over the Colorado decision is that only states where Biden is very likely to win would eventually toss Trump off the ballot, so SCOTUS support for Colorado would have little impact on the final result.