I think this is an optimistic take. In the Gorsuch case that they are citing, there was no question as to whether the guy running for president was a naturalized citizen. I think SCOTUS conservatives are going to make this case about when someone can be kept off the ballot for insurrection: should there be charges brought? A conviction? Whatever standard they choose it will be two steps beyond whatever proof we have of Trump’s participation in Jan 6th.
Truly I hope you’re right! I’m just feeling very down on SCOTUS and their commitment to representative government right now.
There is established precedent that a conviction is not necessary for article 3 to be in effect (see Davis, Jefferson and Lee, Robert E.).
And it’s also unlikely that the Supremes will overturn fact findings (note that this was never appealed by the trump team; they only focused on whether materials/evidence from the J6 committee could be allowed in the district court case). So the conservative majority will either have to come up with a novel way of protecting Trump while 1) not declaring article 3 null and void and/or unenforceable, and 2) respecting the rights of the states to hold elections.
That’s a difficult needle to thread, imo.
I don’t think in terms of liberal justices and conservative justices, I think in terms of justices and corrupt Republican-owned justices.
This was, imo, a savvy move.
Reading through the opinion, the core part of it ( overturning the notion that the president is not an officer of the United States) leans heavily on the analysis by Baude and Paulsen, the two Federalist society law professors that wrote a definitive, recent paper on article 3:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751
(there’s long sections in there to support the ideas that art. 3 is self executing, that the president is an office holder, and that freedom of speech is not a viable defense. It’s worth a read)
By quoting Gorsuch, they are putting him in a bit of a bind. If he is to be internally consistent, he should affirm the SCCO ruling.
Not to mention that a majority of the conservatives (if not all?) are FedSoc members, so the conclusions of Baude and Paulsen should carry some weight with them.
Its quite plausible that Gorsuch and Roberts would join the liberals on the court to uphold the Co ruling.
Unfortunately it’s the same thing
I don’t think in terms of liberal justices and conservative justices, I think in terms of justices and corrupt Republican-owned justices.
To give Gorsuch some begrudging credit, his opinion in Bostock v. Clayton County came out of absolute left field and was some of the most artful use of statutory interpretation I’ve seen. To use Title VII protections against gender discrimination and then apply that on an individual basis alongside actions was something that was as close to a legal mic drop moment as you can get for LGBT rights.
Unfortunately it’s the same thing
If this were a 5-4 court, I’d say it’s more likely. I don’t think the Dobbs decision would have passed if it were 5-4.
They will have a 6-3 majority for at least the next 10 years and don’t feel like they need to toe the line right now. I hope I’m wrong.
Wondering where you got your “at least the next ten years” estimate from. Have you seen Clarence Thomas lately? The man is 75 years old and has at least a 40" waist. The man is a heart attack waiting to happen and I think the odds of him making it to 85 are pretty slim. Alito is 73 and fitter, but again you’re talking about someone who in ten years will be 83, which is two years older than the average age of retirement/death of justices–even with average-skewing elderly justices like Ginsberg and Breyer bringing it up.
A few well-timed strokes and the right person in office and that 6-3 becomes 5-4 again, or even flips in the other direction. Would I bet money on it? No. But I wouldn’t bet against it, either.
If this were a 5-4 court, I’d say it’s more likely. I don’t think the Dobbs decision would have passed if it were 5-4.
They will have a 6-3 majority for at least the next 10 years and don’t feel like they need to toe the line right now. I hope I’m wrong.
Keep in mind that several justices lied in their confirmation hearings, saying that they respected Roe as the law of the land, including Gorsuch.
They blatantly lied but used slippery legalese.
Keep in mind that several justices lied in their confirmation hearings, saying that they respected Roe as the law of the land, including Gorsuch.
This is assuming these Conservative judges give a hoot about integrity.
Fun fact. Gorsuch ruled this in Colorado, and this quote is cited in this recent ruling concerning Trump being kicked off the ballot:
But, as the magistrate judge’s opinion makes clear and we expressly reaffirm here, a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.
I know you feel like the court would try to be rational and internally consistent but they will likely just say he’s allowed because neener-neener you can’t fire us.
This was, imo, a savvy move.
Reading through the opinion, the core part of it ( overturning the notion that the president is not an officer of the United States) leans heavily on the analysis by Baude and Paulsen, the two Federalist society law professors that wrote a definitive, recent paper on article 3:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751
(there’s long sections in there to support the ideas that art. 3 is self executing, that the president is an office holder, and that freedom of speech is not a viable defense. It’s worth a read)
By quoting Gorsuch, they are putting him in a bit of a bind. If he is to be internally consistent, he should affirm the SCCO ruling.
Not to mention that a majority of the conservatives (if not all?) are FedSoc members, so the conclusions of Baude and Paulsen should carry some weight with them.
Its quite plausible that Gorsuch and Roberts would join the liberals on the court to uphold the Co ruling.
Its quite plausible that Gorsuch and Roberts would join the liberals on the court to uphold the Co ruling.
Allow me to introduce you to an old GOP friend we call ‘hypocrisy’ …