Supreme Court rules states cannot remove Trump from ballot
March 4, 2024 11:36 AM Subscribe
Supreme Court rules states cannot remove Trump from ballot for insurrection
PBS: A unanimous Supreme Court restores Trump to the Colorado ballot
The Conversation: The Constitution sets some limits on the people’s choices for president - but the Supreme Court rules it’s unconstitutional for state governments to decide on Trump’s qualifications
The Bulwark: Four Takeaways from the Supreme Court’s Ruling on Trump and the 14th Amendment
Intelligencer: Supreme Court Rules That States Cannot Kick Trump Off the Ballot
The Supreme Court on Monday ruled that states cannot disqualify former President Donald Trump from the ballot for his role in the Jan. 6, 2021, attacks on the U.S. Capitol. In an unsigned opinion, a majority of the justices held that only Congress – and not the states – can enforce Section 3 of the 14th Amendment, which was enacted in the wake of the Civil War to disqualify individuals from holding office who had previously served in the federal or state government before the war but then supported the Confederacy, against candidates for federal offices.
PBS: A unanimous Supreme Court restores Trump to the Colorado ballot
The Conversation: The Constitution sets some limits on the people’s choices for president - but the Supreme Court rules it’s unconstitutional for state governments to decide on Trump’s qualifications
The Bulwark: Four Takeaways from the Supreme Court’s Ruling on Trump and the 14th Amendment
Intelligencer: Supreme Court Rules That States Cannot Kick Trump Off the Ballot
It is exceedingly clear that we lack the legal infrastructure to do anything meaningful about actual attempts at insurrection.
posted by grumpybear69 at 11:46 AM on March 4 [112 favorites]
posted by grumpybear69 at 11:46 AM on March 4 [112 favorites]
I don't want to get in the weeds about this, but the fact is, I do not love the idea of allowing state governments in our day and age to decide who did an insurrection so bad that they can't go on the state ballot. Obviously Trump did, but the right cannot be trusted with that power. Of course Congress will be unable to get its shit together to act on this matter for the foreseeable. Gonna keep my head down and think about getting the vote out.
posted by Countess Elena at 11:47 AM on March 4 [78 favorites]
posted by Countess Elena at 11:47 AM on March 4 [78 favorites]
I am *so* not looking forward to the rest of the political year here in the US.
posted by milnak at 11:48 AM on March 4 [34 favorites]
posted by milnak at 11:48 AM on March 4 [34 favorites]
Do not rely on systems to save you from fascism.
posted by Abehammerb Lincoln at 11:49 AM on March 4 [94 favorites]
posted by Abehammerb Lincoln at 11:49 AM on March 4 [94 favorites]
It suggests that only Congress therefor can enforce that a candidate be a natural-born citizen of the United States to be on the ballot (or be elected), as well as being at least 35 years of age, as those are in the Constitution as well.
posted by Ayn Marx at 11:50 AM on March 4 [18 favorites]
posted by Ayn Marx at 11:50 AM on March 4 [18 favorites]
By my reading, the Supremes only decided the legal question of "Can a state remove someone from a Federal election ballot for insurrection?" and gave the answer as "No", thus avoiding the question of "which branch of the federal government can decide whether an insurrection happened, Congress or the Courts or both?" and also the very obviously high-voltage topic of "Did he do an insurrection?"
posted by The Pluto Gangsta at 11:51 AM on March 4 [9 favorites]
posted by The Pluto Gangsta at 11:51 AM on March 4 [9 favorites]
It is exceedingly clear that we lack the legal infrastructure to do anything meaningful about actual attempts at insurrection.
By the Right. If the Left had tried that, there would be blood in the streets up to our ankles.
posted by Abehammerb Lincoln at 11:51 AM on March 4 [41 favorites]
By the Right. If the Left had tried that, there would be blood in the streets up to our ankles.
posted by Abehammerb Lincoln at 11:51 AM on March 4 [41 favorites]
I feel like we need to drop the pretense that the Supreme Court is a strictly judicial body. They've demonstrated over and over that things like established law and precedent and the actual text of the Constitution are less important than them issuing an ruling in line with their personal and political beliefs about how things should be. At this point it's legislating from the bench with the sheerest fig leaf of judicial rationale.
posted by Two unicycles and some duct tape at 11:53 AM on March 4 [49 favorites]
posted by Two unicycles and some duct tape at 11:53 AM on March 4 [49 favorites]
At this point it's legislating from the bench with the sheerest fig leaf of judicial rationale.
would you say that they are Activist Judges(tm) then?
posted by Dr. Twist at 11:57 AM on March 4 [7 favorites]
would you say that they are Activist Judges(tm) then?
posted by Dr. Twist at 11:57 AM on March 4 [7 favorites]
IS Donald Trump an insurrectionist? Who could possibly say? Life is a mystery. The important thing here is that a rich, white, conservative man continues to evade accountability by manipulating systems designed with protecting people like him in mind.
posted by The Card Cheat at 11:58 AM on March 4 [34 favorites]
posted by The Card Cheat at 11:58 AM on March 4 [34 favorites]
I'm not saying that SCOTUS was wrong in vacating Colorado's decision - that is a double-edge sword, indeed! - but it just feels like a whole lot of nothing has happened, particularly with the recent SCOTUS decision to vacate the additional sentencing for that one J6 rioter. On the other hand, I'm glad we don't live in a country where the government is quick to drag people out into the street and shoot them.
posted by grumpybear69 at 12:02 PM on March 4 [1 favorite]
posted by grumpybear69 at 12:02 PM on March 4 [1 favorite]
if this is simply the us supreme court protecting its power to decide contested presidential elections, then the unanimity is unsurprising
posted by serif at 12:02 PM on March 4 [7 favorites]
posted by serif at 12:02 PM on March 4 [7 favorites]
> By my reading, the Supremes only decided the legal question of "Can a state remove someone from a Federal election ballot for insurrection?" and gave the answer as "No", thus avoiding the question of "which branch of the federal government can decide whether an insurrection happened, Congress or the Courts or both?"
I read it differently. What you read is what the minority concurrences would have had happen. per Election Law Blog:
I read it differently. What you read is what the minority concurrences would have had happen. per Election Law Blog:
The Court majority goes out of its way to impose some very severe limits on how Congress may enforce Section 3 against an insurrectionist. This is complete dicta: that is, none of this was necessary to include to decide that a state cannot disqualify a federal officer under Section 3.posted by persona at 12:05 PM on March 4 [22 favorites]
In particular, the majority requires a certain kind of procedures that Congress must follow (see page 5 of the opinion) and that the remedy that Congress pursues must be “congruent and proportional” to Congress’s power to enforce the 14th amendment. As Justices Sotomayor, Kagan, and Jackson explain, this gives the Supreme Court major power to second guess any congressional decision over enforcement of Section 3. Nothing in Section 3 supports these limits or procedures, the liberal Justices say (and they are right).
What this means is that if Congress tries to disqualify Trump, either before or after the election (which Congress may well try to do), the Supreme Court will have the last word on doing so. We may well have a nasty, nasty post-election period in which Congress tries to disqualify Trump but the Supreme Court says Congress exceeded its powers.
Popehat
"Conventionally decorous fascism is apparently preferable to a chaotic and complicated Republic."
posted by lalochezia at 12:08 PM on March 4 [26 favorites]
"Conventionally decorous fascism is apparently preferable to a chaotic and complicated Republic."
posted by lalochezia at 12:08 PM on March 4 [26 favorites]
Mark Joseph Stern: The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster
So, in effect, Anderson is a 5–4 decision, with a bare majority effectively repealing the insurrection clause for federal officeholders. The liberals’ disapproving citations to Bush v. Gore and Dobbs give a sense of how disastrously they believe the majority went astray.posted by Glegrinof the Pig-Man at 12:11 PM on March 4 [35 favorites]
It should go without saying that Congress will not enact legislation enforcing Section 3. The Republican Party is about to renominate the alleged insurrectionist in this case as its candidate for the presidency in 2024. The party is complicit in the violent events of Jan. 6. It will not allow any insurrection-related laws to clear the Senate filibuster. The whole point of a written constitution is that it can protect individual rights and democracy even when the democratic process itself is corrupted or compromised. SCOTUS has backtracked from that guarantee just when American democracy needs it most.
In their incandescent opinion, the liberal justices walk right up to the line of accusing the majority of doing a special favor for Trump. They are right to do so, and they would have been justified to cross it. The majority had no reason to nullify the insurrection clause other than an obvious desire to ensure that no other federal candidates are nixed from the ballot because of their participation in Jan. 6.
The radicals who pushed through the Civil War amendments were heroes, the "second founders." The end of slavery was a likely outcome of the war; the black vote? Almost unimaginable.
But the wording was often sloppy. This is not a ridiculous decision by the court. The insurrection clause just sits there, like an entry in the meeting minutes that says something should be done but isn't an action item and doesn't have an owner.
Other Supreme Court decisions about the amendment, both from this court and in the 1870s, have been far more outrageous.
But it kind of doesn't matter. People need to vote against Trump if they don't want a fascist elected. You can't have elites save democracy if the people don't want to save it. I know many people here don't like Biden, but the Justice Department, the courts, law enforcement, Congress, none of them are going to bail the American people out if enough people are in favor of or indifferent about him taking power.
posted by mark k at 12:13 PM on March 4 [18 favorites]
But the wording was often sloppy. This is not a ridiculous decision by the court. The insurrection clause just sits there, like an entry in the meeting minutes that says something should be done but isn't an action item and doesn't have an owner.
Other Supreme Court decisions about the amendment, both from this court and in the 1870s, have been far more outrageous.
But it kind of doesn't matter. People need to vote against Trump if they don't want a fascist elected. You can't have elites save democracy if the people don't want to save it. I know many people here don't like Biden, but the Justice Department, the courts, law enforcement, Congress, none of them are going to bail the American people out if enough people are in favor of or indifferent about him taking power.
posted by mark k at 12:13 PM on March 4 [18 favorites]
> I am *so* not looking forward to the rest of the political year here in the US.
I'm so not looking forward to the next five years. (Or more, if he refuses to step down at the end of his second term.)
The grim reality is, Trump is currently ahead in the polls and on track to win in November. Despite him being an obvious criminal and fraud our judicial system is not going to save us from being subjected to his self-serving chicanery once again.
posted by dyslexictraveler at 12:26 PM on March 4 [10 favorites]
I'm so not looking forward to the next five years. (Or more, if he refuses to step down at the end of his second term.)
The grim reality is, Trump is currently ahead in the polls and on track to win in November. Despite him being an obvious criminal and fraud our judicial system is not going to save us from being subjected to his self-serving chicanery once again.
posted by dyslexictraveler at 12:26 PM on March 4 [10 favorites]
My new bellweather for whether a SCOTUS decision is reasonable is how the three non-fascist justices voted. In this case, it was unanimous, so I guess this decision may be okay?
posted by qxntpqbbbqxl at 12:27 PM on March 4 [1 favorite]
posted by qxntpqbbbqxl at 12:27 PM on March 4 [1 favorite]
Days like this I wish we had some sort of high court, one whose decisions took precedence over all other courts in the country, which was composed only of legal and Constitutional scholars and who made decisions based strictly on the merits of an argument in light of existing law and the Constitution, rather than political expediency or venal self-interest or tribalism or what have you. Not sure what we'd call it though. High Court? Overcourt? Ubercourt?
Yeah needs some workshopping I guess. Probably a pipe dream.
posted by Two unicycles and some duct tape at 12:29 PM on March 4 [9 favorites]
Yeah needs some workshopping I guess. Probably a pipe dream.
posted by Two unicycles and some duct tape at 12:29 PM on March 4 [9 favorites]
Remember, it’s states’ rights until it isn’t.
posted by Melismata at 12:33 PM on March 4 [36 favorites]
posted by Melismata at 12:33 PM on March 4 [36 favorites]
The liberal dissent is very concerning. They call out that the majority added extra hurdles to enforcing the insurrection amendment down the road, requiring that Congress pass a law describing how to do so, rather than allowing that Congress already has the authority to enforce this.
I was also disappointed that the majority gave credit to the silliest argument that trumps lawyer made, that the fact that it’s possible for Congress to absolve Trump of having been an insurrectionist at the final hour means that no steps can be taken to keep him from being elected, only steps to prevent him from taking office. That seemed pretty dumb.
posted by macrael at 12:37 PM on March 4 [8 favorites]
I was also disappointed that the majority gave credit to the silliest argument that trumps lawyer made, that the fact that it’s possible for Congress to absolve Trump of having been an insurrectionist at the final hour means that no steps can be taken to keep him from being elected, only steps to prevent him from taking office. That seemed pretty dumb.
posted by macrael at 12:37 PM on March 4 [8 favorites]
Hey I'm coming in late. So the states rights/originalists guys ruled that states can make thier own calls and the Constiution literally means what it says, right?
Wait. They didn't?
[surprised white guy blinking meme]
posted by DirtyOldTown at 12:38 PM on March 4 [25 favorites]
Wait. They didn't?
[surprised white guy blinking meme]
posted by DirtyOldTown at 12:38 PM on March 4 [25 favorites]
Bullshit. Not surprising, but bullshit.
posted by NotAYakk at 12:44 PM on March 4 [6 favorites]
posted by NotAYakk at 12:44 PM on March 4 [6 favorites]
How many hours before someone in the current Republican Congress tries to remove Biden from the ballot?
I don't think the Republicans want to remove Biden from the ballot. Biden seems to be the best chance they have of winning. Trump cannot beat a moderate, coherent (younger) democrat. Look at the weekend's NYT polls. Why would the republicans want to remove Biden based on that? I know there is a lot of turf left between now and November, but trends.
I wish the Court said something like, "Do whatever you want, just no Trump or Biden on the ballot."
posted by JohnnyGunn at 12:46 PM on March 4 [2 favorites]
I don't think the Republicans want to remove Biden from the ballot. Biden seems to be the best chance they have of winning. Trump cannot beat a moderate, coherent (younger) democrat. Look at the weekend's NYT polls. Why would the republicans want to remove Biden based on that? I know there is a lot of turf left between now and November, but trends.
I wish the Court said something like, "Do whatever you want, just no Trump or Biden on the ballot."
posted by JohnnyGunn at 12:46 PM on March 4 [2 favorites]
On the other hand, I'm glad we don't live in a country where the government is quick to drag people out into the street and shoot them.
Until January 20, 2025.
if he refuses to step down at the end of his second term
If he wins in November we won't have to worry about "terms" for a while.
posted by kirkaracha at 12:47 PM on March 4 [18 favorites]
Until January 20, 2025.
if he refuses to step down at the end of his second term
If he wins in November we won't have to worry about "terms" for a while.
posted by kirkaracha at 12:47 PM on March 4 [18 favorites]
From my reading/listening before the decision, kicking the can down the road to Congress was a possible outcome, but was considered a really bad idea bc it was creating a more unstable and contentious election season. Scratch that… SCOTUS doesn’t even clarify how congress might decide or if they’ll be allowed to without SCOTUS intervention.
“ What about the idea that we should think about democracy?”-Kavinaugh
If only Congress had voted by a simple majority we didn’t want this guy before, twice. Or the people, twice. Or made and amendment or something. I’m wondering to what extent “democracy” (ie majoritarian rule) might be used to override the Constitution in the future, when it’s convenient. I am for maintaining established rule of law, but this really puts the con back in con-law.
posted by rubatan at 12:49 PM on March 4 [1 favorite]
“ What about the idea that we should think about democracy?”-Kavinaugh
If only Congress had voted by a simple majority we didn’t want this guy before, twice. Or the people, twice. Or made and amendment or something. I’m wondering to what extent “democracy” (ie majoritarian rule) might be used to override the Constitution in the future, when it’s convenient. I am for maintaining established rule of law, but this really puts the con back in con-law.
posted by rubatan at 12:49 PM on March 4 [1 favorite]
A line from Zoolander keeps running. Through my mind:
"WHAT IS THIS ?
I FEEL LIKE I'M TAKING CRAZY PILLS !"
None of this makes sense. Any person who tried to start an insurrection should not be allowed to stand for Election !!
posted by Faintdreams at 12:54 PM on March 4 [10 favorites]
"WHAT IS THIS ?
I FEEL LIKE I'M TAKING CRAZY PILLS !"
None of this makes sense. Any person who tried to start an insurrection should not be allowed to stand for Election !!
posted by Faintdreams at 12:54 PM on March 4 [10 favorites]
I don't want to get in the weeds about this, but the fact is, I do not love the idea of allowing state governments in our day and age to decide who did an insurrection so bad that they can't go on the state ballot. Obviously Trump did, but the right cannot be trusted with that power.
Countess Elena
Exactly! There's this huge liberal blind spot with these sorts of things, which I see on MeFi as well from time to time, that because one's cause is righteous and just one is justified in taking certain actions or embrace certain policies which could have terrible consequences if abused but just ignore that possibility because obviously anyone doing that wouldn't be right or just so it wouldn't be legitimate. But you absolutely have to consider the potential use of anything by bad-faith actors or people you don't agree with if it's a tool available for them to use too.
How many hours before someone in the current Republican Congress tries to remove Biden from the ballot?
bgrebs
But this is precisely what would have happened had the Court ruled that states can remove candidates from the ballot! There would have been a wave of tit-for-tat removals of Biden in red states. "But they'd be be acting in bad faith! There would be no basis for those state actions!" you cry. So what? If the states had the power to do it, they'd do it.
Leaving this up to the individual states just seems like a monstrously bad idea.
posted by star gentle uterus at 12:59 PM on March 4 [21 favorites]
Countess Elena
Exactly! There's this huge liberal blind spot with these sorts of things, which I see on MeFi as well from time to time, that because one's cause is righteous and just one is justified in taking certain actions or embrace certain policies which could have terrible consequences if abused but just ignore that possibility because obviously anyone doing that wouldn't be right or just so it wouldn't be legitimate. But you absolutely have to consider the potential use of anything by bad-faith actors or people you don't agree with if it's a tool available for them to use too.
How many hours before someone in the current Republican Congress tries to remove Biden from the ballot?
bgrebs
But this is precisely what would have happened had the Court ruled that states can remove candidates from the ballot! There would have been a wave of tit-for-tat removals of Biden in red states. "But they'd be be acting in bad faith! There would be no basis for those state actions!" you cry. So what? If the states had the power to do it, they'd do it.
Leaving this up to the individual states just seems like a monstrously bad idea.
posted by star gentle uterus at 12:59 PM on March 4 [21 favorites]
My new bellweather for whether a SCOTUS decision is reasonable is how the three non-fascist justices voted. In this case, it was unanimous, so I guess this decision may be okay?
The result was unanimous, the reasoning was not.
The liberal dissent is very concerning.
It wasn't a dissent, it was a concurrence.
Just to be clear, there was never any question how this was going to come out. Even people as consistently wrong as me had this one right -- you could even tell what the basis would be. Yes, the liberals on the Court called the conservatives out (correctly) for going too far, and ACB thought it would be a good idea to write separately and, uh, tone-police her liberal colleagues, I guess? But this result was never in doubt, Laurence Tribe notwithstanding. This Court has no stomach for that kind of chaos.
I really hope nobody has any illusions about what the immunity decision is going to look like, whenever that comes down, because we have to be realistic here.
posted by The Bellman at 1:06 PM on March 4 [7 favorites]
The result was unanimous, the reasoning was not.
The liberal dissent is very concerning.
It wasn't a dissent, it was a concurrence.
Just to be clear, there was never any question how this was going to come out. Even people as consistently wrong as me had this one right -- you could even tell what the basis would be. Yes, the liberals on the Court called the conservatives out (correctly) for going too far, and ACB thought it would be a good idea to write separately and, uh, tone-police her liberal colleagues, I guess? But this result was never in doubt, Laurence Tribe notwithstanding. This Court has no stomach for that kind of chaos.
I really hope nobody has any illusions about what the immunity decision is going to look like, whenever that comes down, because we have to be realistic here.
posted by The Bellman at 1:06 PM on March 4 [7 favorites]
I've just been reading summaries, but what I don't understand is the apparent breadth of this ruling. Why should the Feds ban states abilities to disqualify insurrectionist candidates for federal offices when those offices are solely determined by said states (such as reps and senators)? I get that a candidate for a nationwide office should be determined by federal courts, but the ruling should've been more narrow?
posted by BrotherCaine at 1:07 PM on March 4 [3 favorites]
posted by BrotherCaine at 1:07 PM on March 4 [3 favorites]
Franklin: "A nice republic, if you can keep it."
Roberts: "Hahah fuck no, return to sender, nobody wants it here."
posted by i used to be someone else at 1:09 PM on March 4 [9 favorites]
Roberts: "Hahah fuck no, return to sender, nobody wants it here."
posted by i used to be someone else at 1:09 PM on March 4 [9 favorites]
I get that a candidate for a nationwide office should be determined by federal courts, but the ruling should've been more narrow?
The overly presumptuous breadth of the majority ruling is exactly what the separate concurrence from Sotomayor, Kagan and Jackson was about. There's six pages of pointing out how and why the majority oversteps, starting with a pithy quote from the Chief Justice (in Dobbs v. Jackson) that he apparently believes only counts when women's rights to personal autonomy are under consideration: "If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more."
posted by Two unicycles and some duct tape at 1:15 PM on March 4 [15 favorites]
The overly presumptuous breadth of the majority ruling is exactly what the separate concurrence from Sotomayor, Kagan and Jackson was about. There's six pages of pointing out how and why the majority oversteps, starting with a pithy quote from the Chief Justice (in Dobbs v. Jackson) that he apparently believes only counts when women's rights to personal autonomy are under consideration: "If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more."
posted by Two unicycles and some duct tape at 1:15 PM on March 4 [15 favorites]
I really hope nobody has any illusions about what the immunity decision is going to look like, whenever that comes down, because we have to be realistic here.
The liberal justices' "concurrence" reads like they're sounding the alarm bells that immunity currently has a majority.
posted by Glegrinof the Pig-Man at 1:17 PM on March 4 [12 favorites]
The liberal justices' "concurrence" reads like they're sounding the alarm bells that immunity currently has a majority.
posted by Glegrinof the Pig-Man at 1:17 PM on March 4 [12 favorites]
If we're afraid of enforcing the laws because the fash will act in bad faith then wtf are we even doing? How many of these clowns have Ruat Caelum plaques in the office.
Colorado should just say no, this was a SCOTUS violating the 10th Amendment (elections are for the states after all, the powers of deciding insurrection and eligibility are not assigned to the United States as previously found by SCOTUS).
Texas is already flouting a SCOTUS order and testing how optional Federalism is. Its less if than when with the fash. Oh wait, there already was a when, it was Jan 6th and the electeds we should have turfed from Congress.
posted by Slackermagee at 1:19 PM on March 4 [20 favorites]
Colorado should just say no, this was a SCOTUS violating the 10th Amendment (elections are for the states after all, the powers of deciding insurrection and eligibility are not assigned to the United States as previously found by SCOTUS).
Texas is already flouting a SCOTUS order and testing how optional Federalism is. Its less if than when with the fash. Oh wait, there already was a when, it was Jan 6th and the electeds we should have turfed from Congress.
posted by Slackermagee at 1:19 PM on March 4 [20 favorites]
Clarence Thomas and Samuel Alito were actively and/or passively involved in the scheme to overturn the election, and yet they get to rule on this stuff.
For the last 30 years, I've been watching as Democrats refuse to play hard ball. It's embarrassing.
posted by Chuffy at 1:19 PM on March 4 [46 favorites]
For the last 30 years, I've been watching as Democrats refuse to play hard ball. It's embarrassing.
posted by Chuffy at 1:19 PM on March 4 [46 favorites]
It was a long shot to begin with and the decision is well reasoned and supported. I disagree with it, but I'm not surprised that the federal government came up with a way to keep control in their domain.
The only thing they really went off the rails with was insisting on the idea that founders were really big on every citizen getting a vote for President. Call me when we get a popular vote, folks.
I actually have some optimism on the immunity decision. I don't see the court giving up their influence over the executive branch, just on general principles. Even if they really want Trump in the presidency, they're going to want to keep a leash on him.
posted by Tell Me No Lies at 1:37 PM on March 4 [5 favorites]
The only thing they really went off the rails with was insisting on the idea that founders were really big on every citizen getting a vote for President. Call me when we get a popular vote, folks.
I actually have some optimism on the immunity decision. I don't see the court giving up their influence over the executive branch, just on general principles. Even if they really want Trump in the presidency, they're going to want to keep a leash on him.
posted by Tell Me No Lies at 1:37 PM on March 4 [5 favorites]
If we're afraid of enforcing the laws because the fash will act in bad faith then wtf are we even doing?
Thinking carefully about the real-world consequences of what we're advocating rather than only thinking about how it gets us what we want.
Colorado should just say no, this was a SCOTUS violating the 10th Amendment (elections are for the states after all, the powers of deciding insurrection and eligibility are not assigned to the United States as previously found by SCOTUS).
This, for example. It's truly bizarre to see this "ignore the Supreme Court" rhetoric from the left. The right has already been muttering about this for ages and, as noted below, has recently been testing the waters. Okay, Colorado makes this valiant declaration. Red states begin declaring that Obergefell v. Hodges or Brown v. Board of Education are invalid overreaches of authority on the same grounds. Now what?
Again, you can't just picture only the good guys using these things for good.
Texas is already flouting a SCOTUS order and testing how optional Federalism is.
Yes, and this is a bad thing that should be opposed rather than be emulated. We don't want the above scenario where states start unilaterally nullifying federal decisions. This is a bad thing. This is a particular bad thing if you're coming from the left because the 20th century was a story of hard-fought victories incrementally securing legal rights under the Constitution for various groups of people, the very groups who would be the most threatened the second none of this matters anymore.
posted by star gentle uterus at 1:40 PM on March 4 [16 favorites]
Thinking carefully about the real-world consequences of what we're advocating rather than only thinking about how it gets us what we want.
Colorado should just say no, this was a SCOTUS violating the 10th Amendment (elections are for the states after all, the powers of deciding insurrection and eligibility are not assigned to the United States as previously found by SCOTUS).
This, for example. It's truly bizarre to see this "ignore the Supreme Court" rhetoric from the left. The right has already been muttering about this for ages and, as noted below, has recently been testing the waters. Okay, Colorado makes this valiant declaration. Red states begin declaring that Obergefell v. Hodges or Brown v. Board of Education are invalid overreaches of authority on the same grounds. Now what?
Again, you can't just picture only the good guys using these things for good.
Texas is already flouting a SCOTUS order and testing how optional Federalism is.
Yes, and this is a bad thing that should be opposed rather than be emulated. We don't want the above scenario where states start unilaterally nullifying federal decisions. This is a bad thing. This is a particular bad thing if you're coming from the left because the 20th century was a story of hard-fought victories incrementally securing legal rights under the Constitution for various groups of people, the very groups who would be the most threatened the second none of this matters anymore.
posted by star gentle uterus at 1:40 PM on March 4 [16 favorites]
So even though it was "ratified," there's no *actual* legislation activating the 22nd Amendment? So Obama's 3rd term could be a go? Doubtful Congress could roust a ⅔ vote to disqualify.
posted by meehawl at 1:44 PM on March 4 [19 favorites]
posted by meehawl at 1:44 PM on March 4 [19 favorites]
It wasn't a dissent, it was a concurrence.
Maybe not at first:
Maybe not at first:
If you double click where it says "JJ." at the top, then copy and paste it, that line reads: SOTOMAYOR , J., concurring in part and dissenting in part.posted by kirkaracha at 1:46 PM on March 4 [15 favorites]
And if you do a control-F search for "SOTOMAYOR , J., concurring in part and dissenting in part," it highlights that same line.
on the idea that founders were really big on every citizen getting a vote for President.
"Of the 16 states that took part in the 1800 election, six (Kentucky, Maryland, North Carolina, Rhode Island, Tennessee, and Virginia) used some kind of popular vote."[1]
posted by torokunai at 2:16 PM on March 4 [1 favorite]
"Of the 16 states that took part in the 1800 election, six (Kentucky, Maryland, North Carolina, Rhode Island, Tennessee, and Virginia) used some kind of popular vote."[1]
posted by torokunai at 2:16 PM on March 4 [1 favorite]
I blame Mitch McConnell for so much of this: the impeachment vote, the overall composition of SCOTUS, the individuals within that composition of SCOTUS. So many things that could have/should have been different *but*…
posted by mazola at 2:25 PM on March 4 [14 favorites]
posted by mazola at 2:25 PM on March 4 [14 favorites]
How many hours before someone in the current Republican Congress tries to remove Biden from the ballot?
I'm assuming the only bright side of this decision is to prevent Greg Abbott's people from yanking Biden off the Texas ballot b/c Biden's supposedly fostering "insurrection" at the border by not summarily executing immigrants.
posted by jonp72 at 3:04 PM on March 4 [7 favorites]
I'm assuming the only bright side of this decision is to prevent Greg Abbott's people from yanking Biden off the Texas ballot b/c Biden's supposedly fostering "insurrection" at the border by not summarily executing immigrants.
posted by jonp72 at 3:04 PM on March 4 [7 favorites]
Reuters: US Supreme Court seeks security funding to protect justices, homes
SC: we're going to normalize political violence and make sure its foremost proponent has every opportunity to become president again, also we're going to laugh off any attempt to keep us from accepting bribes, make us recuse ourselves when we have a clear conflict of interest, or maintain any semblance of legitimacy and impartiality, oh and also we're going to take women's rights to self-determination away one by one until they start thinking of the handmaid's tale as aspirational, and we'll move on from there to every other disadvantaged group we can think of, just cue them up for us red states and we'll knock them out of the park, let's go
also SC: ... i'm in danger
posted by Two unicycles and some duct tape at 3:08 PM on March 4 [27 favorites]
SC: we're going to normalize political violence and make sure its foremost proponent has every opportunity to become president again, also we're going to laugh off any attempt to keep us from accepting bribes, make us recuse ourselves when we have a clear conflict of interest, or maintain any semblance of legitimacy and impartiality, oh and also we're going to take women's rights to self-determination away one by one until they start thinking of the handmaid's tale as aspirational, and we'll move on from there to every other disadvantaged group we can think of, just cue them up for us red states and we'll knock them out of the park, let's go
also SC: ... i'm in danger
posted by Two unicycles and some duct tape at 3:08 PM on March 4 [27 favorites]
This decision does seem roughly in line with various decisions about the elections clause. Individual states aren't allowed to, for instance, impose term limits on US senators, despite having the power to run elections for US Senators. My question is does this have any bearing on other presidential qualifications? For example, if someone is thirty and decides to run for president, and meets all the other state requirements for ballot inclusion, are states obligated to put them on the ballot until such time as someone makes a federal case out of it? Maybe so. Probably that's how it should be. If Obama had run in the current electoral climate, it is not hard to imagine some state court disqualifying him based on the birther lie, and I think we would all hope that the Supreme Court would step in and say that such things aren't questions for states to determine.
The requirement for an act of congress to enable the amendment seems like a gross overreach to me. Like, fine, the appropriate venue for disqualification of federal officers might be federal court, but the idea that congress must pass a law before the amendment means anything is not what the amendment says.
posted by surlyben at 3:10 PM on March 4 [4 favorites]
The requirement for an act of congress to enable the amendment seems like a gross overreach to me. Like, fine, the appropriate venue for disqualification of federal officers might be federal court, but the idea that congress must pass a law before the amendment means anything is not what the amendment says.
posted by surlyben at 3:10 PM on March 4 [4 favorites]
Leaving this up to the individual states just seems like a monstrously bad idea.
Leaving it up to the state is bad for the entire elections system, period. In Shelby v. Holder, we had to respect the sovereign status of the states, but Colorado is evidently not sovereign enough to be allowed to bar Trump from the ballot, even though we bar primary candidates & non-major party candidates off the ballot for failing to meet arcane signature requirements.
If SCOTUS had any moral consistency, a decision like this should lead to a federalization of election laws & the abolition of the Electoral College, because evidently we can only trust the federal government to administer elections. But we all know that's not going to happen.
posted by jonp72 at 3:21 PM on March 4 [16 favorites]
Leaving it up to the state is bad for the entire elections system, period. In Shelby v. Holder, we had to respect the sovereign status of the states, but Colorado is evidently not sovereign enough to be allowed to bar Trump from the ballot, even though we bar primary candidates & non-major party candidates off the ballot for failing to meet arcane signature requirements.
If SCOTUS had any moral consistency, a decision like this should lead to a federalization of election laws & the abolition of the Electoral College, because evidently we can only trust the federal government to administer elections. But we all know that's not going to happen.
posted by jonp72 at 3:21 PM on March 4 [16 favorites]
Yes, and this is a bad thing that should be opposed rather than be emulated. We don't want the above scenario where states start unilaterally nullifying federal decisions. This is a bad thing. This is a particular bad thing if you're coming from the left because the 20th century was a story of hard-fought victories incrementally securing legal rights under the Constitution for various groups of people, the very groups who would be the most threatened the second none of this matters anymore.
I just don't understand what people aren't seeing here. They let GOP maps go through because they were too close to an election but cut NY's. They've put both hands and a foot on the scale for Trump. Medical freedoms are up and somehow we don't think every other gain legislatively, constitutionally, or judicially made is also up for grabs?! What is the goddamn plan, just saunter along hoping two of them croak and we control the Senate and presidency at that moment?
We are in a slow rolling constitutional crisis but it will not always be slow. Texas and North Carolina understand power. They're exercising power, power that they're betting won't be contested. There have been dozens of things over the last four years like this! The constitution is now littered with dead letter protections from emoluments to speedy trial.
We are in the crisis. The crisis is happening. It's not going to magically go back to normal because the other side doesn't have to and in fact makes gains on this crisis reality. No one is going to Come Along. Systems of government will not save you from fascism at this stage in the crisis. Power can, and we've done it inside this country before at incredible expense.
Sanctuary Cities are one form of power that we've seen from the dems. Democrats need to realize that this is a Right Now thing and that cannot be the last foray into "Actually Go Fuck Yourself".
The court's taking fucking bribes, like, come on! We are operating beyond a normal environment and the dems aren't governing like it.
posted by Slackermagee at 3:21 PM on March 4 [53 favorites]
I just don't understand what people aren't seeing here. They let GOP maps go through because they were too close to an election but cut NY's. They've put both hands and a foot on the scale for Trump. Medical freedoms are up and somehow we don't think every other gain legislatively, constitutionally, or judicially made is also up for grabs?! What is the goddamn plan, just saunter along hoping two of them croak and we control the Senate and presidency at that moment?
We are in a slow rolling constitutional crisis but it will not always be slow. Texas and North Carolina understand power. They're exercising power, power that they're betting won't be contested. There have been dozens of things over the last four years like this! The constitution is now littered with dead letter protections from emoluments to speedy trial.
We are in the crisis. The crisis is happening. It's not going to magically go back to normal because the other side doesn't have to and in fact makes gains on this crisis reality. No one is going to Come Along. Systems of government will not save you from fascism at this stage in the crisis. Power can, and we've done it inside this country before at incredible expense.
Sanctuary Cities are one form of power that we've seen from the dems. Democrats need to realize that this is a Right Now thing and that cannot be the last foray into "Actually Go Fuck Yourself".
The court's taking fucking bribes, like, come on! We are operating beyond a normal environment and the dems aren't governing like it.
posted by Slackermagee at 3:21 PM on March 4 [53 favorites]
The founders did a not-great job with the groundwork here. The States and Elections clause basically says that states can run elections however they want, and the Supreme Court has generally interpreted that pretty broadly. So this particular result may be correct (read the 14th if you haven’t - it literally says Congress has the power to enforce the insurrection clause “by appropriate legislation”), but it doesn’t seem to gibe well with the otherwise state-centric election powers.
Another interesting thought : why do we allow states to just make up crazy rules that decide which parties and people get to be on the ballot in the first place? Why is it easier or harder to get a third party recognized depending on the state? Is that maybe a first amendment speech issue?
Anyway, as stated above, the real issue here is that about 50% of voters want Trump anyway. It should be like 8% but we don’t live in that world. Let’s all repeat: SWING VOTER TURNOUT. SWING VOTER TURNOUT. Hopefully the I/P stuff gets some sort or resolution sooner rather than later, or youth vote enthusiasm is going to be a bitch to drum up. I’m not too excited about text banking myself … I’m voting “no preference” tomorrow.
posted by caviar2d2 at 3:35 PM on March 4 [6 favorites]
Another interesting thought : why do we allow states to just make up crazy rules that decide which parties and people get to be on the ballot in the first place? Why is it easier or harder to get a third party recognized depending on the state? Is that maybe a first amendment speech issue?
Anyway, as stated above, the real issue here is that about 50% of voters want Trump anyway. It should be like 8% but we don’t live in that world. Let’s all repeat: SWING VOTER TURNOUT. SWING VOTER TURNOUT. Hopefully the I/P stuff gets some sort or resolution sooner rather than later, or youth vote enthusiasm is going to be a bitch to drum up. I’m not too excited about text banking myself … I’m voting “no preference” tomorrow.
posted by caviar2d2 at 3:35 PM on March 4 [6 favorites]
Despite him being an obvious criminal
Don’t forget that Rapist Donald Trump is also a rapist.
posted by heyitsgogi at 3:37 PM on March 4 [18 favorites]
Don’t forget that Rapist Donald Trump is also a rapist.
posted by heyitsgogi at 3:37 PM on March 4 [18 favorites]
> Yes, and this is a bad thing that should be opposed rather than be emulated. We don't want the above scenario where states start unilaterally nullifying federal decisions. This is a bad thing.
Sure, but the question is not "Will red states start doing this?" - we're there already - the question is "How well does the federal government control each red state's National Guard?". The legal niceties already don't matter to the people prepared to abuse their authority.
posted by Inspector.Gadget at 3:38 PM on March 4 [7 favorites]
Sure, but the question is not "Will red states start doing this?" - we're there already - the question is "How well does the federal government control each red state's National Guard?". The legal niceties already don't matter to the people prepared to abuse their authority.
posted by Inspector.Gadget at 3:38 PM on March 4 [7 favorites]
Systems of government will not save you from fascism at this stage in the crisis. Power can, and we've done it inside this country before at incredible expense.
So, if I understand this position, it is: (a) insurrection is bad -- so bad that it should be disqualifying, and (b) the Supreme Court has failed adequately to give effect to that fundamental Constitutional principle, so (c) we should engage in insurrection?
posted by The Bellman at 3:52 PM on March 4 [3 favorites]
So, if I understand this position, it is: (a) insurrection is bad -- so bad that it should be disqualifying, and (b) the Supreme Court has failed adequately to give effect to that fundamental Constitutional principle, so (c) we should engage in insurrection?
posted by The Bellman at 3:52 PM on March 4 [3 favorites]
I understand the need to avoid the tit-for-tat that is highly likely to arise, especially in the current political climate, if the individual states can ban whomever they want from the ballot for federal elections.
OTOH, what happens if one party holds both the House and the Senate at the federal level? Can they simply declare any political opponents as insurrectionists and ban them from being on the federal ballot?
I don't see how this decision fixes that problem. It just shifts the arena it will play out in.
posted by Pouteria at 3:59 PM on March 4 [3 favorites]
OTOH, what happens if one party holds both the House and the Senate at the federal level? Can they simply declare any political opponents as insurrectionists and ban them from being on the federal ballot?
I don't see how this decision fixes that problem. It just shifts the arena it will play out in.
posted by Pouteria at 3:59 PM on March 4 [3 favorites]
We are operating beyond a normal environment and the dems aren't governing like it.
They are fundraising based on it though; I find it galling, as a leftist (who is planning to vote for Biden although I feel sick about it), to feel like the Democrats are trying to pressure me into voting for them by talking about "unprecedented times" and the unique danger of Donald Trump and then seeing them turn around and try to coax him into working with them on a border bill doing exactly the kinds of things that are making it so hard for me to vote for Biden.
posted by an octopus IRL at 4:07 PM on March 4 [12 favorites]
They are fundraising based on it though; I find it galling, as a leftist (who is planning to vote for Biden although I feel sick about it), to feel like the Democrats are trying to pressure me into voting for them by talking about "unprecedented times" and the unique danger of Donald Trump and then seeing them turn around and try to coax him into working with them on a border bill doing exactly the kinds of things that are making it so hard for me to vote for Biden.
posted by an octopus IRL at 4:07 PM on March 4 [12 favorites]
Honestly suprised they are doing even that, they seem completely in active outside of left-punching.
posted by Artw at 4:09 PM on March 4 [4 favorites]
posted by Artw at 4:09 PM on March 4 [4 favorites]
Want to tear down the 20th Century? Sure! Just ask John Roberts for a show of hands and the decisions write themselves! Want to elect a progressive to a Senate seat in California? Good luck with that.
Ugh, the times we live in.
posted by lock robster at 4:13 PM on March 4 [1 favorite]
Ugh, the times we live in.
posted by lock robster at 4:13 PM on March 4 [1 favorite]
the Democrats are trying to pressure me into voting for them by talking about "unprecedented times" and the unique danger of Donald Trump and then seeing them turn around and try to coax him into working with them on a border bill doing exactly the kinds of things that are making it so hard for me to vote for Biden.
The GOTV hits keep on coming. In today's New Yorker article, Biden is quoted re Roe v Wade saying: "I've never been supportive of, you know, 'It's my body, I can do what I want with it.'"
posted by dusty potato at 4:16 PM on March 4 [11 favorites]
The GOTV hits keep on coming. In today's New Yorker article, Biden is quoted re Roe v Wade saying: "I've never been supportive of, you know, 'It's my body, I can do what I want with it.'"
posted by dusty potato at 4:16 PM on March 4 [11 favorites]
Reuters: US Supreme Court seeks security funding to protect justices, homes
It has not even been two years since their last handout, which passed 396-27 after Dobbs
posted by StarkRoads at 4:31 PM on March 4 [5 favorites]
It has not even been two years since their last handout, which passed 396-27 after Dobbs
posted by StarkRoads at 4:31 PM on March 4 [5 favorites]
Emptywheel: SCOTUS Invites Jack Smith to Supersede Trump with Inciting Insurrection
posted by kirkaracha at 4:55 PM on March 4 [2 favorites]
Taken in tandem with SCOTUS’ punt on Trump’s immunity bid, this seems like an invitation for Jack Smith to supersede Trump with inciting insurrection. After all, SCOTUS has now upheld the DC Circuit opinion that says there’s no double jeopardy problem with trying someone for something on which they were acquitted after impeachment.And as we used to say in Missouri (or maybe it was Bad Santa), you can wish in one hand and shit in the other and see which one fills up first.
Jack Smith could — today — charge Trump with inciting insurrection in response to this order. It is the one Constitutional means to disqualify him, according to this order.
posted by kirkaracha at 4:55 PM on March 4 [2 favorites]
So, if I understand this position, it is: (a) insurrection is bad -- so bad that it should be disqualifying, and (b) the Supreme Court has failed adequately to give effect to that fundamental Constitutional principle, so (c) we should engage in insurrection?
I do not think that following the rules as written on the page in plain English and described even more clearly by their author is an insurrection. There's no contorting or gymnastics involved in asking Colorado to give SCOTUS the bird here. SCOTUS has ruled, as recently as Shelby, that elections are the concern of the states and that 14A section 5 has limits. That throws the issue to the states under 10A, because who the fuck else is there?
That this court wants its Reconstruction Revisionism Cake along with Coup Cake? That's the deviation from peaceful governance, that's the insurrection equivalent. Everyone gets to have an opinion. Madison abstaining from having an opinion on the Marbury decision does not disempower everyone today from getting to think and act like SCOTUS is full of shit and not the God Emperor of Constitutional Authority when they step well over the line.
posted by Slackermagee at 5:18 PM on March 4 [7 favorites]
I do not think that following the rules as written on the page in plain English and described even more clearly by their author is an insurrection. There's no contorting or gymnastics involved in asking Colorado to give SCOTUS the bird here. SCOTUS has ruled, as recently as Shelby, that elections are the concern of the states and that 14A section 5 has limits. That throws the issue to the states under 10A, because who the fuck else is there?
That this court wants its Reconstruction Revisionism Cake along with Coup Cake? That's the deviation from peaceful governance, that's the insurrection equivalent. Everyone gets to have an opinion. Madison abstaining from having an opinion on the Marbury decision does not disempower everyone today from getting to think and act like SCOTUS is full of shit and not the God Emperor of Constitutional Authority when they step well over the line.
posted by Slackermagee at 5:18 PM on March 4 [7 favorites]
The Supreme Court proud to announce the new dodge coup.
posted by Riki tiki at 5:48 PM on March 4 [10 favorites]
posted by Riki tiki at 5:48 PM on March 4 [10 favorites]
Melismata: Doofus Goobus summed it up in five words:
STATES' RIGHTS TO DO WHAT
posted by BiggerJ at 6:03 PM on March 4 [7 favorites]
STATES' RIGHTS TO DO WHAT
posted by BiggerJ at 6:03 PM on March 4 [7 favorites]
I guess it should have been obvious since the end of Reconstruction that conservative in U.S. parlance really meant unreconstructed Confederate, but they've been given the benefit of the doubt for 150 years now. I'm tired of it.
posted by ob1quixote at 6:37 PM on March 4 [14 favorites]
posted by ob1quixote at 6:37 PM on March 4 [14 favorites]
>> on the idea that founders were really big on every citizen getting a vote for President.
>"Of the 16 states that took part in the 1800 election, six (Kentucky, Maryland, North Carolina, Rhode Island, Tennessee, and Virginia) used some kind of popular vote."[1]
Yeah, it used to be much worse. But given that virtually every state still does winner-take-all for their slate of electors, and then of course the states votes' being weighted by how many electors they have, we are a very far cry from anything like a popular vote for President.
posted by Tell Me No Lies at 7:17 PM on March 4 [3 favorites]
>"Of the 16 states that took part in the 1800 election, six (Kentucky, Maryland, North Carolina, Rhode Island, Tennessee, and Virginia) used some kind of popular vote."[1]
Yeah, it used to be much worse. But given that virtually every state still does winner-take-all for their slate of electors, and then of course the states votes' being weighted by how many electors they have, we are a very far cry from anything like a popular vote for President.
posted by Tell Me No Lies at 7:17 PM on March 4 [3 favorites]
Summum ius summa iniuria.
posted by warriorqueen at 7:56 PM on March 4
posted by warriorqueen at 7:56 PM on March 4
I think the ruling is pretty absurd, constitutionally.
Article ii, section 1, clause 2 gives the choice of presidental electors to the state entirely. It's up to the individual state entirely how and to who they decide to give their electoral votes. Effectively this means: the State has the power to determine its own manner for electing the president. A state could decide to use one of those ball thingies they use to choose lottery numbers. They could choose to allow only the States' 5 year olds vote. They could choose to only send Electors for candidates with funny names. There's no limit placed on the states power to choose electors. Surely this extends to being able to regard certain candidates as ineligible for electors.
posted by dis_integration at 8:39 PM on March 4 [9 favorites]
Article ii, section 1, clause 2 gives the choice of presidental electors to the state entirely. It's up to the individual state entirely how and to who they decide to give their electoral votes. Effectively this means: the State has the power to determine its own manner for electing the president. A state could decide to use one of those ball thingies they use to choose lottery numbers. They could choose to allow only the States' 5 year olds vote. They could choose to only send Electors for candidates with funny names. There's no limit placed on the states power to choose electors. Surely this extends to being able to regard certain candidates as ineligible for electors.
posted by dis_integration at 8:39 PM on March 4 [9 favorites]
It's even worse than that because a) this is a primary ballot and b) the Electoral College exists. If Trump got kicked off the primary ballot in CO, well, so what? The RNC is free to disregard them entirely, as other parties have done for other states.
If CO then decided that Trump couldn't appear on the general election ballot, again, so what? If CO swung hard-right and nominated electors for Haley instead, those electors are not bound to actually vote for Haley. In any reality they'd go to the electoral college, support the otherwise-elected nominee, and go about their day.
For better or worse, nothing about the current system works in a way that would mean that CO kicking Trump off the ballot would be a meaningful impediment to Trump getting elected.
posted by 0xFCAF at 8:47 PM on March 4 [3 favorites]
If CO then decided that Trump couldn't appear on the general election ballot, again, so what? If CO swung hard-right and nominated electors for Haley instead, those electors are not bound to actually vote for Haley. In any reality they'd go to the electoral college, support the otherwise-elected nominee, and go about their day.
For better or worse, nothing about the current system works in a way that would mean that CO kicking Trump off the ballot would be a meaningful impediment to Trump getting elected.
posted by 0xFCAF at 8:47 PM on March 4 [3 favorites]
If CO then decided that Trump couldn't appear on the general election ballot, again, so what? If CO swung hard-right and nominated electors for Haley instead, those electors are not bound to actually vote for Haley.
They are indeed bound to vote for the candidate who got the most votes. See the Colorado FAQ on electors.
posted by mark k at 8:57 PM on March 4 [5 favorites]
They are indeed bound to vote for the candidate who got the most votes. See the Colorado FAQ on electors.
posted by mark k at 8:57 PM on March 4 [5 favorites]
I think maybe the best chance to stop a Trump second term just vanished.
A majority of the supreme court just indicated that if he wins the election as looks likely none of the legal trouble about to hit him will matter a plate of beans.
I mean they just effectively destroyed a constitutional amendment to keep him in a primary he doesn't need.
posted by zymil at 10:38 PM on March 4 [8 favorites]
A majority of the supreme court just indicated that if he wins the election as looks likely none of the legal trouble about to hit him will matter a plate of beans.
I mean they just effectively destroyed a constitutional amendment to keep him in a primary he doesn't need.
posted by zymil at 10:38 PM on March 4 [8 favorites]
I'm a little curious about how this ruling squares with past elections that fiddled with the electoral college and/or tried to get the election decided by the House. The Dixiecrats in 1948 come to mind and, in 1964, Johnson's name did not appear on the Alabama ballot, the third time that state refused a soon-to-be-elected Presidential candidate a place on the ballot. So there is a tradition of leaving the States to their own electoral devices. Seems to me the Originalists are having a difficult time keeping up with changes in the US electoral system over the last two centuries.
posted by CCBC at 1:24 AM on March 5 [9 favorites]
posted by CCBC at 1:24 AM on March 5 [9 favorites]
I think maybe the best chance to stop a Trump second term just vanished.
The gift SCOTUS gave Trump was agreeing to take up his immunity claim, rather than let the previous ruling that presidential immunity doesn't exist stand. And sitting for two weeks on the decision to take it up in the first place, and then announcing a not-very-fast schedule. (Remember that SCOTUS stepped in on Bush's behalf in Bush v Gore immediately.)
posted by Gelatin at 4:28 AM on March 5 [10 favorites]
The gift SCOTUS gave Trump was agreeing to take up his immunity claim, rather than let the previous ruling that presidential immunity doesn't exist stand. And sitting for two weeks on the decision to take it up in the first place, and then announcing a not-very-fast schedule. (Remember that SCOTUS stepped in on Bush's behalf in Bush v Gore immediately.)
posted by Gelatin at 4:28 AM on March 5 [10 favorites]
Like to play some Calvinball?
The latest rule revisions in play are the Electoral Count Reform act of 2022, passed in the wake of January 6. That law, of course, has not yet had a chance to be applied or tested. I'll take a couple of guesses about what would happen if Colorado leaves Trump off the general election ballot.
Scenario 1:
Colorado removes Trump from the ballot. Biden wins Colorado anyway, as expected. According to the current rules.....Colorado is still responsible for certifying their own electoral votes. Congress themselves passed a law saying that states certify their electoral votes and that Congress themselves can't challenge and overturn that certification by second-guessing how the election in that state took place. Supreme Court shrugs and says it's up to Congress to decide. Colorado's votes don't change. Net result: no change in the outcome.
Scenario 2:
Colorado removes Trump from the ballot. Assume in this scenario that Republicans have taken narrow control of both the House and Senate. Biden wins Colorado. On election night, Biden wins, but only by 3 or 4 electoral votes. When electoral votes are counted under the new 2022 rules, one-fifth of the House (at least 87 members) and one-fifth of the Senate (at least 20 members) sign a challenge to throw out Colorado's electoral votes. This might or might not be strictly in compliance with the law, but Republicans don't care, and the Supreme Court doesn't intervene. This is enough to stop Biden from getting the 270 votes needed to win, which leads to a contingent election for President in the House. The contingent election gives each state delegation one vote. Trump wins the contingent election, narrowly, with 26 delegations. Whether this leads to further constitutional crises is something I'll leave to further speculation.
Oh, and just for fun, Scenario 3:
Lots of states hold candidates off the ballot, which leads to a general mess where nothing is resolved, nobody can agree on the electoral count at all, and the details of the contingent election in the House are contested as well, leading to a vacancy in the office of President. In the rules for Presidential succession, you'd get the Speaker of the House as President, which would depend on which party wins control of the House in November. If Democrats control the House, you get President Hakeem Jeffries. Probably Republican control would mean President Mike Johnson, but Republicans don't have a good track record of electing Speakers recently....so who knows?
posted by gimonca at 4:57 AM on March 5 [1 favorite]
The latest rule revisions in play are the Electoral Count Reform act of 2022, passed in the wake of January 6. That law, of course, has not yet had a chance to be applied or tested. I'll take a couple of guesses about what would happen if Colorado leaves Trump off the general election ballot.
Scenario 1:
Colorado removes Trump from the ballot. Biden wins Colorado anyway, as expected. According to the current rules.....Colorado is still responsible for certifying their own electoral votes. Congress themselves passed a law saying that states certify their electoral votes and that Congress themselves can't challenge and overturn that certification by second-guessing how the election in that state took place. Supreme Court shrugs and says it's up to Congress to decide. Colorado's votes don't change. Net result: no change in the outcome.
Scenario 2:
Colorado removes Trump from the ballot. Assume in this scenario that Republicans have taken narrow control of both the House and Senate. Biden wins Colorado. On election night, Biden wins, but only by 3 or 4 electoral votes. When electoral votes are counted under the new 2022 rules, one-fifth of the House (at least 87 members) and one-fifth of the Senate (at least 20 members) sign a challenge to throw out Colorado's electoral votes. This might or might not be strictly in compliance with the law, but Republicans don't care, and the Supreme Court doesn't intervene. This is enough to stop Biden from getting the 270 votes needed to win, which leads to a contingent election for President in the House. The contingent election gives each state delegation one vote. Trump wins the contingent election, narrowly, with 26 delegations. Whether this leads to further constitutional crises is something I'll leave to further speculation.
Oh, and just for fun, Scenario 3:
Lots of states hold candidates off the ballot, which leads to a general mess where nothing is resolved, nobody can agree on the electoral count at all, and the details of the contingent election in the House are contested as well, leading to a vacancy in the office of President. In the rules for Presidential succession, you'd get the Speaker of the House as President, which would depend on which party wins control of the House in November. If Democrats control the House, you get President Hakeem Jeffries. Probably Republican control would mean President Mike Johnson, but Republicans don't have a good track record of electing Speakers recently....so who knows?
posted by gimonca at 4:57 AM on March 5 [1 favorite]
Founders: no kings, no king like privileges.
Trumpists: obviously kings for us and suffering for you. Laws? Hah!
posted by Jacen at 5:18 AM on March 5 [2 favorites]
Trumpists: obviously kings for us and suffering for you. Laws? Hah!
posted by Jacen at 5:18 AM on March 5 [2 favorites]
What? Are you saying there are downsides to having an unelected bunch of judges be responsible for legislating?
posted by tommasz at 5:37 AM on March 5 [3 favorites]
posted by tommasz at 5:37 AM on March 5 [3 favorites]
Article ii, section 1, clause 2 gives the choice of presidental electors to the state entirely.
Amendment 14, section 2. [emphasis mine]
posted by Tell Me No Lies at 5:39 AM on March 5 [1 favorite]
Amendment 14, section 2. [emphasis mine]
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.In short, all citizens have a right to vote in major elections.
posted by Tell Me No Lies at 5:39 AM on March 5 [1 favorite]
> A state could decide to use one of those ball thingies they use to choose lottery numbers
is this the new sortition thread
posted by bombastic lowercase pronouncements at 6:24 AM on March 5 [5 favorites]
is this the new sortition thread
posted by bombastic lowercase pronouncements at 6:24 AM on March 5 [5 favorites]
They could choose to allow only the States' 5 year olds vote.
Well, no. That would violate the 26th Amendment.
In general, a state that tried the other sort of ad absurdum approaches you mentioned would get into conflicts over equal protection, republican government, and other clauses. Section 2 of the 14th Amendment refers to the right to vote for electors for President, for example. "The Constitution" is a mix of precedents, interpretations and practices.
Surely this extends to being able to regard certain candidates as ineligible for electors.
Note that for Congress, the Supreme Court has already decided that states can not add more qualification requirements than appear in the Constitution.
posted by mark k at 7:34 AM on March 5 [4 favorites]
Well, no. That would violate the 26th Amendment.
In general, a state that tried the other sort of ad absurdum approaches you mentioned would get into conflicts over equal protection, republican government, and other clauses. Section 2 of the 14th Amendment refers to the right to vote for electors for President, for example. "The Constitution" is a mix of precedents, interpretations and practices.
Surely this extends to being able to regard certain candidates as ineligible for electors.
Note that for Congress, the Supreme Court has already decided that states can not add more qualification requirements than appear in the Constitution.
posted by mark k at 7:34 AM on March 5 [4 favorites]
The gift SCOTUS gave Trump was agreeing to take up his immunity claim, rather than let the previous ruling that presidential immunity doesn't exist stand.
I'm a bit more optimistic. I think Roberts wants a decision down on paper that will not only cancel the immunity claims from the insurrection trial, but also the Mar-a-Lago papers trial. And the Georgia trial. Because TFG is going to run that immunity claim up the pole every. single. time.
So, yeah, this slows down the Jan6 trial but it might greatly speed up the classified documents one. I'm also optimistic that this strategy backfires on TFG. He'll, hopefully, still be on trial right before the election. I'm not a lawyer but I'd think anyone else would want the first trial done and be on appeal at this point in the timeline. If Jack Smith is playing back phone calls and Twitter DMs in October? Bring it on.
posted by JoeZydeco at 7:34 AM on March 5 [1 favorite]
I'm a bit more optimistic. I think Roberts wants a decision down on paper that will not only cancel the immunity claims from the insurrection trial, but also the Mar-a-Lago papers trial. And the Georgia trial. Because TFG is going to run that immunity claim up the pole every. single. time.
So, yeah, this slows down the Jan6 trial but it might greatly speed up the classified documents one. I'm also optimistic that this strategy backfires on TFG. He'll, hopefully, still be on trial right before the election. I'm not a lawyer but I'd think anyone else would want the first trial done and be on appeal at this point in the timeline. If Jack Smith is playing back phone calls and Twitter DMs in October? Bring it on.
posted by JoeZydeco at 7:34 AM on March 5 [1 favorite]
So, yeah, this slows down the Jan6 trial but it might greatly speed up the classified documents one
It doesn't matter. The classified documents case is already not going to trial before the election, given Judge Cannon's glacial pace with every single motion.
The Supreme Court treating the immunity clause as a non-emergency (not taking it immediately when asked, then taking two weeks to decide what to do on appeal, then not rejecting it, etc., etc.) has put the trial one more delay from being after the election.
And if Trump wins, anything that happens after the election is moot.
posted by mark k at 7:41 AM on March 5 [10 favorites]
It doesn't matter. The classified documents case is already not going to trial before the election, given Judge Cannon's glacial pace with every single motion.
The Supreme Court treating the immunity clause as a non-emergency (not taking it immediately when asked, then taking two weeks to decide what to do on appeal, then not rejecting it, etc., etc.) has put the trial one more delay from being after the election.
And if Trump wins, anything that happens after the election is moot.
posted by mark k at 7:41 AM on March 5 [10 favorites]
On the other hand, I'm glad we don't live in a country where the government is quick to drag people out into the street and shoot them.
Depends on how the Supreme Court decides the immunity case, given Trump’s lawyers have argued that a sitting president can have people summarily executed without trial.
posted by eviemath at 7:56 AM on March 5 [6 favorites]
Depends on how the Supreme Court decides the immunity case, given Trump’s lawyers have argued that a sitting president can have people summarily executed without trial.
posted by eviemath at 7:56 AM on March 5 [6 favorites]
Anyway, as stated above, the real issue here is that about 50% of voters want Trump anyway. It should be like 8% but we don’t live in that world.
“A government as good as its people.” —Jimmy Carter in 1977, holding the monkey’s paw
posted by non canadian guy at 7:58 AM on March 5 [14 favorites]
“A government as good as its people.” —Jimmy Carter in 1977, holding the monkey’s paw
posted by non canadian guy at 7:58 AM on March 5 [14 favorites]
hey could choose to allow only the States' 5 year olds vote.
Well, no. That would violate the 26th Amendment.
In general, a state that tried the other sort of ad absurdum approaches you mentioned would get into conflicts over equal protection, republican government, and other clauses. Section 2 of the 14th Amendment refers to the right to vote for electors for President, for example. "The Constitution" is a mix of precedents, interpretations and practices.
Surely this extends to being able to regard certain candidates as ineligible for electors.
Note that for Congress, the Supreme Court has already decided that states can not add more qualification requirements than appear in the Constitution.
26th amendment only says that you cannot be forbidden from voting *because* you are 18. It does not establish 18 as the minimum voting age.
It's true that equal protection clauses do limit certain actions a state could take (you can't say only whites can vote for president, sure). I was being a bit facetious.
That makes it even more absurd, however, since the disqualification for insurrection is a limitation on office defined by the 14th amendment. Which also means US Term Limits, Inc. v. Thornton is a strange case to apply here. The 14th amendment makes the restriction explicit. It's as clear as the age limit.
It's pretty clear that the manner for determining the choice of electors is up to the states. Unless donald trump is running for President, I guess. This ruling is a preview of the one that will surely make the President an unaccountable tyrant in a few months. Here's what Thomas had to say about US Term Limits, Inc., v. Thornton:
posted by dis_integration at 9:24 AM on March 5 [2 favorites]
Well, no. That would violate the 26th Amendment.
In general, a state that tried the other sort of ad absurdum approaches you mentioned would get into conflicts over equal protection, republican government, and other clauses. Section 2 of the 14th Amendment refers to the right to vote for electors for President, for example. "The Constitution" is a mix of precedents, interpretations and practices.
Surely this extends to being able to regard certain candidates as ineligible for electors.
Note that for Congress, the Supreme Court has already decided that states can not add more qualification requirements than appear in the Constitution.
26th amendment only says that you cannot be forbidden from voting *because* you are 18. It does not establish 18 as the minimum voting age.
It's true that equal protection clauses do limit certain actions a state could take (you can't say only whites can vote for president, sure). I was being a bit facetious.
That makes it even more absurd, however, since the disqualification for insurrection is a limitation on office defined by the 14th amendment. Which also means US Term Limits, Inc. v. Thornton is a strange case to apply here. The 14th amendment makes the restriction explicit. It's as clear as the age limit.
It's pretty clear that the manner for determining the choice of electors is up to the states. Unless donald trump is running for President, I guess. This ruling is a preview of the one that will surely make the President an unaccountable tyrant in a few months. Here's what Thomas had to say about US Term Limits, Inc., v. Thornton:
It is ironic that the Court bases today's decision on the right of the people to "choose whom they please to govern them." Under our Constitution, there is only one State whose people have the right to "choose whom they please" to represent Arkansas in Congress ... Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.The fact that he did not come out with a similar conclusion in the Insurrection case points the way already. We'll soon discover that the President can in fact murder his political opponents with impunity. Maybe Dark Brandon will seize the moment and bring us an Ice Cream Despotism.
posted by dis_integration at 9:24 AM on March 5 [2 favorites]
Adding to the position largely taken by SlackerMagee, but also discussed by others, about the wisdom of states deciding not to abide by SCOTUS decisions:
Everybody to the left of center has got to come around to realizing that the Supreme Court has been a cancer on American democracy since the day John Marshall came out with Marbury v. Madison and decided that the Supreme Court would be the ultimate authority on the Constitution—a provision conspicuously absent from the Constitution.
Liberals living in the glow of the Warren Court think of SCOTUS as a bulwark protecting civil rights against the Right. But the Warren Court was a blip, an anomaly, an elite error that gave us one short good period in what has otherwise been a non-stop parade of godawful decisions, the major ones of each era so bad that they're still household names.
Marbury's effects aren't that famous, but Marshall set himself up to legalize the new regime of corporatization that would define the country from the early 1800s on down to today.
Then we've got Dred Scott, which held that not just enslaved people temporarily on free territory, and not just manumitted people, but zero Black people could ever be citizens.
Then we've got the 1883 Civil Rights Cases and Plessy v. Ferguson which defang the 14th Amendment and institute Jim Crow.
Then the Lochner era, where the Court strikes down every little bit of worker protection until FDR threatens to pack the court.
Then Korematsu, where the Court says yeah you can lock up an ethnic group for no cognizable reason.
Then the Warren Court (but even signal Warren victories, like Brown v. Board were themselves ephemeral because the Court couldn't enforce them and no state in the union wanted to follow them, which is why the American school system is still extremely segregated).
And then the current, inexorable efforts of every court since Warren to dismantle everything that happened under Warren.
A court is probably the best thing we've got for interpreting law. A court is an incredibly dangerous vehicle for interpreting how a political system should work—i.e., Constitutional law.
So, as far as states rebelling against the Court, I dunno, good. The Court is a cancer, the Constitution names no ultimate arbiter of Constitutional law, and that role should by rights belong to the elected branch, the Congress.
posted by TheProfessor at 11:00 AM on March 5 [20 favorites]
Everybody to the left of center has got to come around to realizing that the Supreme Court has been a cancer on American democracy since the day John Marshall came out with Marbury v. Madison and decided that the Supreme Court would be the ultimate authority on the Constitution—a provision conspicuously absent from the Constitution.
Liberals living in the glow of the Warren Court think of SCOTUS as a bulwark protecting civil rights against the Right. But the Warren Court was a blip, an anomaly, an elite error that gave us one short good period in what has otherwise been a non-stop parade of godawful decisions, the major ones of each era so bad that they're still household names.
Marbury's effects aren't that famous, but Marshall set himself up to legalize the new regime of corporatization that would define the country from the early 1800s on down to today.
Then we've got Dred Scott, which held that not just enslaved people temporarily on free territory, and not just manumitted people, but zero Black people could ever be citizens.
Then we've got the 1883 Civil Rights Cases and Plessy v. Ferguson which defang the 14th Amendment and institute Jim Crow.
Then the Lochner era, where the Court strikes down every little bit of worker protection until FDR threatens to pack the court.
Then Korematsu, where the Court says yeah you can lock up an ethnic group for no cognizable reason.
Then the Warren Court (but even signal Warren victories, like Brown v. Board were themselves ephemeral because the Court couldn't enforce them and no state in the union wanted to follow them, which is why the American school system is still extremely segregated).
And then the current, inexorable efforts of every court since Warren to dismantle everything that happened under Warren.
A court is probably the best thing we've got for interpreting law. A court is an incredibly dangerous vehicle for interpreting how a political system should work—i.e., Constitutional law.
So, as far as states rebelling against the Court, I dunno, good. The Court is a cancer, the Constitution names no ultimate arbiter of Constitutional law, and that role should by rights belong to the elected branch, the Congress.
posted by TheProfessor at 11:00 AM on March 5 [20 favorites]
From an excellent piece by Elie Mystal in The Nation, "The Supreme Court Must Be Stopped":
I think of the Supreme Court the way Batman thinks of Superman: an extremely powerful being who is untethered from the laws of physics and therefore must always be considered a threat to free society. [...] We must regard the Supreme Court with that level of skepticism. These people are not our friends; they are not here to help, and at any moment they can take from us that which we should value most: our ability to democratically govern ourselves.
posted by miles per flower at 12:26 PM on March 5 [11 favorites]
I think of the Supreme Court the way Batman thinks of Superman: an extremely powerful being who is untethered from the laws of physics and therefore must always be considered a threat to free society. [...] We must regard the Supreme Court with that level of skepticism. These people are not our friends; they are not here to help, and at any moment they can take from us that which we should value most: our ability to democratically govern ourselves.
posted by miles per flower at 12:26 PM on March 5 [11 favorites]
After reading some SCOTUS rulings on ballot access, I can see why all 9 justices agreed that Trump should be on the ballot. This article from the Denver law review was rather enlightening. Anderson v. Celebrezze and Burdick v. Takushi are precedents for this decision.
The arguments about sovereignty in Shelby County v. Holder focused mostly on equal sovereignty. That is the court found it's OK to impinge on the sovereignty of the states like Anderson v. Celebrezze and Burdick v. Takushi do, as long as you do it equally.
As much as I don't want another Trump presidency, acting like this ruling is a travesty of justice seems hypocritical. However, I would agree with Sotomayor, Kagan, and Jackson's point about how there are other remedies besides legislation.
posted by betaray at 1:16 PM on March 5 [4 favorites]
The arguments about sovereignty in Shelby County v. Holder focused mostly on equal sovereignty. That is the court found it's OK to impinge on the sovereignty of the states like Anderson v. Celebrezze and Burdick v. Takushi do, as long as you do it equally.
As much as I don't want another Trump presidency, acting like this ruling is a travesty of justice seems hypocritical. However, I would agree with Sotomayor, Kagan, and Jackson's point about how there are other remedies besides legislation.
posted by betaray at 1:16 PM on March 5 [4 favorites]
The Supreme Court's ballot ruling is absurd. They don't care.
posted by Artw at 1:36 PM on March 5 [4 favorites]
posted by Artw at 1:36 PM on March 5 [4 favorites]
Racial disparities in voter turnout have grown since Supreme Court ruling, study says
Never pretend these people are doing anything legitimate or with any real reasoning behind it except for the preservation of power and the will of conservatives.
posted by Artw at 3:04 PM on March 5 [3 favorites]
Never pretend these people are doing anything legitimate or with any real reasoning behind it except for the preservation of power and the will of conservatives.
posted by Artw at 3:04 PM on March 5 [3 favorites]
Is Originalism Bullshit?
While not all instances of originalism are bullshit, I identify those instances which are, and go on to demonstrate that originalism is uniquely prone to bullshit as a result of institutional demands on those involved in constitutional disputes. When interpreters engage in historical analysis for purposes other than determining the correct original public meaning or original intentions, they veer into bullshit territory. An attorney who argues from selective historical research or citations designed to support his client’s case or a judge who relies on what she suspects may be incomplete party submissions but which are enough to reach the desired outcome are both engaging in bullshit originalism.
posted by Artw at 6:24 PM on March 5 [2 favorites]
While not all instances of originalism are bullshit, I identify those instances which are, and go on to demonstrate that originalism is uniquely prone to bullshit as a result of institutional demands on those involved in constitutional disputes. When interpreters engage in historical analysis for purposes other than determining the correct original public meaning or original intentions, they veer into bullshit territory. An attorney who argues from selective historical research or citations designed to support his client’s case or a judge who relies on what she suspects may be incomplete party submissions but which are enough to reach the desired outcome are both engaging in bullshit originalism.
posted by Artw at 6:24 PM on March 5 [2 favorites]
I can't say it was unexpected, but it remains disappointing.
I'd also like to say "ha well that puts paid to the 'Independent State Legislature' notion", but we all know that the Republican Justices always rule for whatever most benefits the Republican Party, so it's entirely possible they will have ruled that the states don't have the right to exclude Trump, but the states DO have the right to totally ignore all federal laws WRT elections.
As for Biden shitting on Roe and abortion rights, that's also not surprising, but remains disappointing. The Democrats are grandmasters at shooting themselves in the foot. In a tight election year with women being one of the Democratic Party's bigger demographics, of course Biden will go out of his way to make abortion rights a less cut and dried issue...
posted by sotonohito at 8:00 PM on March 5 [2 favorites]
I'd also like to say "ha well that puts paid to the 'Independent State Legislature' notion", but we all know that the Republican Justices always rule for whatever most benefits the Republican Party, so it's entirely possible they will have ruled that the states don't have the right to exclude Trump, but the states DO have the right to totally ignore all federal laws WRT elections.
As for Biden shitting on Roe and abortion rights, that's also not surprising, but remains disappointing. The Democrats are grandmasters at shooting themselves in the foot. In a tight election year with women being one of the Democratic Party's bigger demographics, of course Biden will go out of his way to make abortion rights a less cut and dried issue...
posted by sotonohito at 8:00 PM on March 5 [2 favorites]
The Supreme Court already rejected the Independent State Legislature theory.
posted by mark k at 9:06 PM on March 5 [2 favorites]
posted by mark k at 9:06 PM on March 5 [2 favorites]
Liberals living in the glow of the Warren Court think of SCOTUS as a bulwark protecting civil rights against the Right. But the Warren Court was a blip, an anomaly, an elite error that gave us one short good period in what has otherwise been a non-stop parade of godawful decisions, the major ones of each era so bad that they're still household names.
This.
Personally I grew up buying into the centrist "Oh the Supreme Court is great" idea, bolstered by the way the right hated Brennan and Marshall. The law, analyzed by careful scholars, seemed to be on our side!
Then I eventually admitted that "maybe this court with Scalia and Thomas isn't living up to the tradition" but took an embarrassingly long time to get to the realization that it sucked before the Civil War, after the Civil War, during the Progressive Era, during the Great Depression and wait . . . this isn't an exception at all.
The whole concept of a court that's above politics and will solve our problems without messy debate, compromise and factionalism is in fact ridiculous, but people raised like me are still writing the narratives more often than not.
posted by mark k at 9:16 PM on March 5 [9 favorites]
This.
Personally I grew up buying into the centrist "Oh the Supreme Court is great" idea, bolstered by the way the right hated Brennan and Marshall. The law, analyzed by careful scholars, seemed to be on our side!
Then I eventually admitted that "maybe this court with Scalia and Thomas isn't living up to the tradition" but took an embarrassingly long time to get to the realization that it sucked before the Civil War, after the Civil War, during the Progressive Era, during the Great Depression and wait . . . this isn't an exception at all.
The whole concept of a court that's above politics and will solve our problems without messy debate, compromise and factionalism is in fact ridiculous, but people raised like me are still writing the narratives more often than not.
posted by mark k at 9:16 PM on March 5 [9 favorites]
What a bizarrely written and very short per curiam. It sounded like Roberts or maybe Kavanaugh authored it. Definitely no Gorsuchisms. Free of citations to legal scholarship, too. Fucking weird.
ACB’s plea to “lower the national temperature” should have been aimed at the male justices.
The only real check on the power of SCOTUS at this point is that they have to ask Congress for extra funding for their personal security.
posted by edithkeeler at 3:15 AM on March 6 [2 favorites]
ACB’s plea to “lower the national temperature” should have been aimed at the male justices.
The only real check on the power of SCOTUS at this point is that they have to ask Congress for extra funding for their personal security.
posted by edithkeeler at 3:15 AM on March 6 [2 favorites]
I can see why all 9 justices agreed that Trump should be on the ballot. This article from the Denver law review was rather enlightening...
It's definitely an interesting article. I do think it's dated, and not really applicable here.
It's talking about when to defer to the states' authority to establish their own voting laws. Importantly, it's talking about how to evaluate and balance voting restrictions against the people's right to express themselves democratically.
The VRA itself is effectively an expansion. It basically said "using this formula, if you have a history of racist voting restrictions, you have to take an extra step to prove you're not impinging on people's rights". It doesn't stop them from passing non-racist election laws, Alabama was (ostensibly) suing on the basis of it being administratively inconvenient.
In other scenarios, we think it's fine for a law to recognize historic bad behavior and apply "inconveniences". Maybe most ironically in this context, there's the issue of felony disenfranchisement: the conservatives apparently use a reading of the fourteenth amendment that expands upon the ambiguity of the phrase "rebellion, or other crime" when it restricts voters, even when the crimes are completely irrelevant to the democratic process.
But apparently (per Shelby County) when we see states with a history of racist voting laws, and despite the sweeping amendment language prohibiting "[denying] to any person within its jurisdiction the equal protection of the laws", it's the restrictions placed upon the state that have gone too far; the state's restrictions on their voters are sacrosanct.
What a coincidence that a constitutional amendment fully predicated on protecting the rights of the people keeps being read in ways that actually restrict the rights of the people.
But one more thing: since that article is about what the constitution and prior precedent has to say about state vs. federal interests, there's another important consideration that makes all of its arguments irrelevant in the Trump ballot case: the criterion being applied to keep him off the ballot isn't Colorado's, it's in the fourteenth amendment. That means we can skip all the analysis about balancing the state's legitimate or reasonable interest in that restriction vs. the federal government's, because the constitution is binding on both and says insurrectionists are ineligible.
I'm not pretending that upholding the CO Supreme Court wouldn't create chaos, I'm not ignoring how fraught it would be to have eligibility of one of the two presumptive candidates decided by random judges or rogue state legislatures. I feel very conflicted by this whole thing. But as written and previously understood, the law would work against Trump here, consequences be damned. And it certainly wasn't a slam dunk in the opposite direction deserving of a 9-0.
posted by Riki tiki at 3:29 PM on March 11
It's definitely an interesting article. I do think it's dated, and not really applicable here.
It's talking about when to defer to the states' authority to establish their own voting laws. Importantly, it's talking about how to evaluate and balance voting restrictions against the people's right to express themselves democratically.
The VRA itself is effectively an expansion. It basically said "using this formula, if you have a history of racist voting restrictions, you have to take an extra step to prove you're not impinging on people's rights". It doesn't stop them from passing non-racist election laws, Alabama was (ostensibly) suing on the basis of it being administratively inconvenient.
In other scenarios, we think it's fine for a law to recognize historic bad behavior and apply "inconveniences". Maybe most ironically in this context, there's the issue of felony disenfranchisement: the conservatives apparently use a reading of the fourteenth amendment that expands upon the ambiguity of the phrase "rebellion, or other crime" when it restricts voters, even when the crimes are completely irrelevant to the democratic process.
But apparently (per Shelby County) when we see states with a history of racist voting laws, and despite the sweeping amendment language prohibiting "[denying] to any person within its jurisdiction the equal protection of the laws", it's the restrictions placed upon the state that have gone too far; the state's restrictions on their voters are sacrosanct.
What a coincidence that a constitutional amendment fully predicated on protecting the rights of the people keeps being read in ways that actually restrict the rights of the people.
But one more thing: since that article is about what the constitution and prior precedent has to say about state vs. federal interests, there's another important consideration that makes all of its arguments irrelevant in the Trump ballot case: the criterion being applied to keep him off the ballot isn't Colorado's, it's in the fourteenth amendment. That means we can skip all the analysis about balancing the state's legitimate or reasonable interest in that restriction vs. the federal government's, because the constitution is binding on both and says insurrectionists are ineligible.
I'm not pretending that upholding the CO Supreme Court wouldn't create chaos, I'm not ignoring how fraught it would be to have eligibility of one of the two presumptive candidates decided by random judges or rogue state legislatures. I feel very conflicted by this whole thing. But as written and previously understood, the law would work against Trump here, consequences be damned. And it certainly wasn't a slam dunk in the opposite direction deserving of a 9-0.
posted by Riki tiki at 3:29 PM on March 11
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posted by bgrebs at 11:40 AM on March 4 [18 favorites]