In case you didn’t hear the news, last night, the Colorado Supreme Court kicked Trump off the ballot in Colorado. Obviously, Trump will appeal, but here are some quick thoughts:
- Someone finally did their fucking job. As some asshole with a blog noted previously, this was a cry for help since the overturned lower state court decision got it right on the hard part (did Trump commit insurrection?), and then took a dive on the easy part (does the law apply to the presidency?).
- I eagerly await the contortions involved in arguing that the amendment’s crafters thought secessionist Robert E. Lee was ineligible for a Senate or House seat, but were fine with him assuming the presidency.
- What makes this hard for the Republicans on the Supreme Court is that two successive courts have now held that Trump’s actions constitute the act of insurrection. They typically don’t like to overturn findings of fact, though, of course, that probably won’t constrain them–and this is probably how they’ll overturn the Colorado decision (if they do so).
- It also appears that parts of the decision intentionally refer to decisions previously authored by sitting members of the Court, including a decision written by Justice Gorsuch when he was an appeals court judge that prevented a naturalized U.S. citizen who wanted to run for president from appearing on the ballot which argued states had a legitimate interest in protecting the integrity of the ballot. They were obviously writing for the Supreme Court.
- The Supreme Court likely will find for Trump, but it will further delegitimize the Court, something Roberts desperately doesn’t want.
- Speaking of which, if Democrats don’t consistently call for Thomas’ recusal, based on his wife cavorting with insurrectionists, they are practicing political malpractice. They might want to go so far as stating that a decision with Thomas as the deciding vote is illegitimate. The justices are political actors, not Disinterested Practitioners of Jurisprudence, so put the pressure on them. Regardless of the outcome, this will be perceived as a political decision.
- My HAWT TAEK is that the Court will decide for Trump 5-4, with Roberts joining the minority, so the decision won’t appear completely partisan, but who knows with these jokers?
- The Republicans on the Court must be miserable right now, and that couldn’t happen to a nicer bunch of assholes.
mikethemadbiologist
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My Hawt Taek is that
1. This ruling only applies to the primary.
2. Colorado Republicans have already said they will switch to doing a caucus.
3. A new suit would be needed to apply to the general election.
4. It will eventually have the exact same ruling
5. Trump is not likely to win in Colorado in 2024
6. SC would be foolish to over ride states rights when Trump will want the ability to have Republican run states provide their own set of electors if Trump loses the race in that state
7. Therefore SC WILL override states rights, but call it a “one time” ruling, as they did in 2000 Bush v. Gore
If we imagine that SCOTUS will actually call balls and strikes, the ruling is most vulnerable on your point 3. Yes, the trial judge, acting as a finder of fact, decided that Trump had committed insurrection. However, because there is a federal statute, 18 USC 2383, making “rebellion or insurrection” a crime, and there is a claim I have read that this statute was passed in 1870 at the same time as 14.3, the logical inference is that 2383 is the enabling legislation for 14.3. If that is the case, you have to be convicted under 2383 to be disqualified by 14.3, well, either that, or you have to have served the Confederacy.
I’m not a lawyer, so I lack the undoubtedly simple skills needed to verify this claim that the 2383 language originated in 1870. But, no matter when it originated, either before or after 14.3, the idea that 14.3 was written with the intent that conviction for the crime of rebellion or insurrection would define insurrection status, at least for insurrections other than the Civil War, seems pretty compelling to me.
Participants in the Civil War, which people in the North in 1870 tended to refer to as “the recent rebellion” (because the country was not yet inclined to elevate the status of the traitors in defense of slavery by calling it a civil war), had already been grandfathered into insurrectionist status by numerous acts of Congress and by blanket presidential pardons. 14.3 was self-executing in the decades immediately following 1870 because it was as simple a matter of public record as age and citizenship, whether or not a person had served the Confederacy. In fact, the reason that 14.3 was thought necessary was that prosecution for insurrection or rebellion was no longer possible for those who had betrayed our country and served the Confederacy, because of al the pardons and amnesties already granted that covered that whole class, those who had committed rebellion, insurrection, sedition and treason, by participating in the recent rebellion, a rebellion defined as such by statutes during the war of the rebellion.
14.3 wasn’t written to apply exclusively to just what was in 1870 the recent war of rebellion. Of course what had happened once, in 1860-5, could happen again. So they worded 14.3 to apply to any insurrection or rebellion, and then passed a statue defining rebellion or insurrection. The current version of that statute has a bar from office as a mandatory punishment on conviction, which further reinforces the idea that it should be treated as the enabling legislation for 14.3, the only way to put insurrectionist status into the public record as an established fact, at least the only way unless Congress passes new laws analogous to the ones it passed in 1861 declaring the seceded states to be in rebellion. A law declaring the J6 storming of the Capitol to be an insurrection would be an example of how to do that, establish an entire class of people as insurrectionists without convicting them individually in court of violating 2383. Failing that, such conviction would be the only way to bar them from office under 14.3.
To complete the argument, obviously, if 2383 is the only way under 14.3 to establish insurrectionist status short of a law defining a whole class as insurrectionists, then Trump’s due process rights demand that he be barred from office under 14.3 only after being found guilty of 2383 in a trial on charges for that crime. The bar can’t be based on some judge doing some ad hoc finding of fact based on a process she created out of whole cloth.
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