By that measure, they could change how the rule fearing that if they rule 5-4 that Trump is eligible that some deranged liberal will attack one of them and get them replaced with Biden appointee who will ban Trump.
I don’t think Supreme Court justices would bow to terroristic threats against them or their family. When serious threats are made, they can easily get federal protection and making threats against judges is an easy case for prosecutors.
I do agree that making such a ruling would make certain conservatives very unpopular with many conservative groups at least in the short term.
I mean once SCOTUS issues their ruling, it’s done. There isn’t another appeal to do. If more legal challenges are filed, it should easily be thrown out by lower courts as already ruled on by SCOTUS. Further, if some conservative terrorist murdered SCOTUS justices, Biden and the (very narrow) Democratic majority in the Senate would nominate their replacements.
And this SCOTUS has already overruled Roe without fear, which affects a lot more people than one particular man being eligible for the ballot.
It wouldn’t surprise me if most of the conservatives on the Supreme Court rule Trump is ineligible under 14th amendment, because they realize (1) he did try to commit insurrection, (2) another Trump term would tear this country further apart, (3) Trump will have a hard time being president with four felony trials on going (and strong evidence of guilt in all four), and (4) the Republican party should be stronger electorally without Trump controlling it.
If the Supreme Court takes the case, it won’t be to resolve the question over Trump, specifically. They will decline to hear cases that are so narrow in scope.
The legal question that the Supreme Court will seek to resolve is how states can implement the clause from the 14th amendment and what criteria must be met to say someone is ineligible for President because he has participated in an insurrection.
We can take two extreme cases - we can look at Jefferson Davis, President of the Confederacy. Clearly, he engaged in insurrection against the U.S. We can then look at President Biden. Clearly, he has not engaged in insurrection against the U.S.
Somewhere between these two obvious edge cases is a logical litmus test for determining whether someone is eligible to run for office, informed by existing statutes on the matter. And I’d anticipate that litmus test is going to be fairly stringent in order to preserve democracy.
That’s what the Supreme Court will resolve if they take the case. And quite frankly, I think a lot of people have tinted glasses based on who their “team” is. I don’t see the Supreme Court upholding Colorado’s decision here, insofar as I don’t think they will agree that what happened on Jan 6 constituted an insurrection against the government of the United States. Riot? Sure. Violent political protest? Also true. An insurrection when most of the people were unarmed? Naw.
What’s interesting is that this was never resolved in the post Civil War era because the amnesty act of 1872 basically neutered section 3 of the 14th amendment.
The legal analysis I’ve seen are basically saying that the scotus doesn’t review facts that are agreed upon, and both the appellate court and Colorado Supreme Court agreed that he did commit insurrection. The legal reasoning being disputed is whether or not POTUS is a position that is affected by the 14th amendment. The lower court ruled that he should remain on the ballot because POTUS isn’t a civil or military office. The Colorado Supreme Court overturned it because they said the POTUS is beholden to the 14th amendment. That would be the dispute the the scotus would be reviewing. I honestly can see them not hearing the case.
It seems clear to me that the gist of that clause is that if one has taken an oath to support and defend the Constitution (which the President of the US does), then you become ineligible if you have engaged in insurrection.
I agree the SCOTUS won’t review arguments not being made. But lawyers often change their arguments as cases progress.
I honestly can see them not hearing the case.
Yeah, there doesn’t really seem a whole lot of wiggle room if this is the legal question.
The legal analysis I’ve seen are basically saying that the scotus doesn’t review facts that are agreed upon, and both the appellate court and Colorado Supreme Court agreed that he did commit insurrection. The legal reasoning being disputed is whether or not POTUS is a position that is affected by the 14th amendment. The lower court ruled that he should remain on the ballot because POTUS isn’t a civil or military office. The Colorado Supreme Court overturned it because they said the POTUS is beholden to the 14th amendment. That would be the dispute the the scotus would be reviewing. I honestly can see them not hearing the case.
It seems clear to me that the gist of that clause is that if one has taken an oath to support and defend the Constitution (which the President of the US does), then you become ineligible if you have engaged in insurrection.
I agree the SCOTUS won’t review arguments not being made. But lawyers often change their arguments as cases progress.
I honestly can see them not hearing the case.
Yeah, there doesn’t really seem a whole lot of wiggle room if this is the legal question.
This is my favorite analysis so far and it agrees with you that the US Supreme Court is unlikely to overturn the Colorado decision on the facts of insurrection.
Section 3 of the 14th amendment forbids people from “holding any office, civil or military, under the US or under any state, who having previously taken an oath […] as an officer of the US […] to support the Constitution of the US, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The Constitution states this disability can be removed with a 2/3 vote of each House.
The Amnesty Act of 1872 removed the applicability of 14th amendment to most confederates (except for those who were in the 36th or 37th Congress – from 1859-1863, as well as officers in judicial, military and naval service, heads of Departments, and foreign ministers), but it didn’t amend the Constitution.
Hence, the act of 1872 granted amnesty to most secessionists in the US Civil War, but it did not amend the Constitution (which would require 3/4 of states to approve the amendment). Further, you cannot grant amnesty for a crime before it occurs. The section 3 of the 14th amendment has been successfully used by the House to prevent a socialist US representative from taking a seat in 1919 (though ultimately in 1921 he did take office when his sedition act charges were overturned – the amnesty acts of 1872 did not rule Section 3 was irrelevant).
It wouldn’t surprise me if most of the conservatives on the Supreme Court rule Trump is ineligible under 14th amendment, because they realize (1) he did try to commit insurrection, (2) another Trump term would tear this country further apart, (3) Trump will have a hard time being president with four felony trials on going (and strong evidence of guilt in all four), and (4) the Republican party should be stronger electorally without Trump controlling it.
If the Supreme Court takes the case, it won’t be to resolve the question over Trump, specifically. They will decline to hear cases that are so narrow in scope.
The legal question that the Supreme Court will seek to resolve is how states can implement the clause from the 14th amendment and what criteria must be met to say someone is ineligible for President because he has participated in an insurrection.
We can take two extreme cases - we can look at Jefferson Davis, President of the Confederacy. Clearly, he engaged in insurrection against the U.S. We can then look at President Biden. Clearly, he has not engaged in insurrection against the U.S.
Somewhere between these two obvious edge cases is a logical litmus test for determining whether someone is eligible to run for office, informed by existing statutes on the matter. And I’d anticipate that litmus test is going to be fairly stringent in order to preserve democracy.
That’s what the Supreme Court will resolve if they take the case. And quite frankly, I think a lot of people have tinted glasses based on who their “team” is. I don’t see the Supreme Court upholding Colorado’s decision here, insofar as I don’t think they will agree that what happened on Jan 6 constituted an insurrection against the government of the United States. Riot? Sure. Violent political protest? Also true. An insurrection when most of the people were unarmed? Naw.
What’s interesting is that this was never resolved in the post Civil War era because the amnesty act of 1872 basically neutered section 3 of the 14th amendment.
it’s not just about the events of Jan 6. It’s everything else he did to try to steal the election. The Georgia phone call, the fake electors plot, and the incitement. He did “engage in insurrection” despite whether the riot on 1/6 itself was an insurrection or not. It was just one part of the broader conspiracy and probably the weakest part of the plot.
He likely only intended for the crowd to gather outside. I actually don’t think he intended to incite a riot and a storming of the building. That was the MAGA mob and the 3%ers and the Proud Boys and other random raging ultra MAGAtts.
You are projecting your need for internal consistency.
The fascist mind simply has no need for internal consistency whatsoever. Consistency is an impediment to their true goal, which is eliminating dissent.
The fascist will use arguments and ideas in the same manner as weapons in a video game: cycle through their inventory until they find one that is effective against the target they currently face, then shoot until the target stops moving. As soon as the weapon/argument stops working, it is immediately unequipped, and they pull out another one, even if that one directly contradicts the first. The contradiction itself is a useful weapon, because it angers liberals. The only objective is to make their enemy stop talking and give up, so they can go back to abusing power.
Yes, but it feels like you’re assuming that Trump, rather than the state’s rights agenda, is the crucial part of their fascist takeover. It’s not. Conservatives embraced fascism generations ago and have been steadily working on a plan to make that happen over the long term. Trump has been successful because the groundwork for fascism was already laid. Yes, he has accelerated the emergence of open fascism, but he did not create it. And, at this point, he might be viewed as more of a liability toward this end goal than an asset. I think Republicans have shown that they can achieve their goals and may want to move ahead with someone who is savvy enough to continue the fascist takeover without constantly getting entangled in what are otherwise easily avoidable civil and criminal conflicts.
You are projecting your need for internal consistency.
The fascist mind simply has no need for internal consistency whatsoever. Consistency is an impediment to their true goal, which is eliminating dissent.
The fascist will use arguments and ideas in the same manner as weapons in a video game: cycle through their inventory until they find one that is effective against the target they currently face, then shoot until the target stops moving. As soon as the weapon/argument stops working, it is immediately unequipped, and they pull out another one, even if that one directly contradicts the first. The contradiction itself is a useful weapon, because it angers liberals. The only objective is to make their enemy stop talking and give up, so they can go back to abusing power.