December 23, 2023

"Meet the biggest and baddest new power broker in the 2024 presidential contest: an unelected and unenthusiastic U.S. Supreme Court."

"If this thought sits a bit uneasily, blame the lawfaring leftists who engineered the sandbagging of the nation's top jurists.... Embittered by electoral losses, unwilling to trust the will of voters, the left now routinely turns to extraordinary legal action in hopes of pressing the courts to impose its political objectives by judicial fiat. Every party to these high-stakes, highly speculative cases knew exactly where this would end. And not one cares a whit for the consequences for the high court.... The biggest question now is whether the three liberal justices understand the grave risks of this lawfaring agenda... Do they sign up for the campaign with opinions that justify novel legal theories and the judicial usurpation of elections -- in the process inviting more special counsels, more rogue court decisions, more litigation? Or do they recognize this game for what it is, acknowledge the sound legal reasons for why no one has attempted such reckless prosecutions and lawsuits before, and send a message it needs to stop?"

Writes Kimberley A. Strassel in "Sandbagging the Supreme Court" (Wall Street Journal).

57 comments:

Cappy said...

The three liberal judges are sandbags.

Stick said...

There are three "equal" branches of government. When the Democrats elect a president, they gladly let their team "legislate" from the bully pulpit. When that doesn't work, intimidate the other branch.
Legislating is hard.

Breezy said...

Yes - exactly this. SCOTUS has an institution to preserve and a legacy to safeguard. They can’t allow themselves to be cowed into the muck.

Dave Begley said...

“Novel legal theories” is the wrong phrase. The Colorado decision is objectively wrong. Not a close question at all. It should be 9-0.

rehajm said...

Do they ‘sign up’ for it? They ARE it…

If Trump hadn’t effed things up for them every one of the totalitarian strategies their think tanks thunk up would be implemented by now, affirmed by the DIE Supremes just before the No Whites Christmas Party but after the staffer butt sex in chambers holiday special had dropped on Netflix. A post election America we may see yet…

RMc said...

an unelected and unenthusiastic U.S. Supreme Court."

The only time anyone ever complains about the judiciary being "unelected" is when they rule in a way they don't like.

gspencer said...

"Embittered by electoral losses, unwilling to trust the will of voters, the left now routinely turns to extraordinary legal action in hopes of pressing the courts to impose its political objectives by judicial fiat."

The left hasn't just recently turned to the courts to get what the public rejects at the ballot box. The left's been doing that for decades. The ACLU, begun in 1920, set out to destabilize through lawfare. [Not so-fun fact: the 2d Am expressly states a civil right; the ACLU never took up a 2A case.]

Examples: many of the Warren Court decisions; without public consent, lawfare saddled us with legalized abortion.

Leland said...

I think the best political pull quote I read all year.

Bob Boyd said...

The biggest question now is what dirt does the Regime have on all the Justices?

Lem the artificially intelligent said...

Just when we thought we were out, Bush v. Gore, they pulled us back in.

boatbuilder said...

They will send a very wishy-washy message that they won't let this one stand, but they really, really don't want to get involved in politics, and maybe perhaps under the right circumstances something else would pass Constitutional muster.

When the message should be--this is wholly and entirely unconstitutional and a clear and present danger to the future of our Republic, and will be slapped down quickly and unambiguously.

Yancey Ward said...

I wrote the other day I believe SCOTUS will overturn the Colorado SC decision, but I don't think Roberts will get all nine on board- he will, at most, get 7-2. Also, it isn't implausible that Roberts and Kavanaugh join the 3 libtards in order to get rid of Trump- the uniparty loathe Trump and might well burn everything to the ground to get rid of him.

Bob Boyd said...

What will happen at Swamp Court?

rhhardin said...

The principle is that it leaves prosecution in the hands of the most motivated and most unhinged prosecutor and court among the thousands in the US, as finders of fact.

It's infinite jeopardy.

Mike (MJB Wolf) said...

Kim is a very clever writer. We know an avalanche of “What Roberts Should Do” articles are coming so why not get out in front with this take. Nicely done WSJ.

R C Belaire said...

I envision a 5:4 SC split, and it could go either way. Pessimist or realist? Your call. No trust in Roberts or Kavanaugh.

Wince said...

Watch Dershowitz's master class in absolutely destroying the absurdity of the Colorado Supreme Court decision last night using both historical context and the 14 Amendment, sec 5.

So nice to have Tammy Bruce rather than the blowhard Hannity mucking-up the interview.

Lem the artificially intelligent said...

The full proof solution is to build a Time Machine to go back and kill Hitler.

The problem with that is Biden spends all the money in useless causes, while the solution to all our problems doesn’t make it past the drawing board, or, CAD screens.

Randomizer said...

an unelected and unenthusiastic U.S. Supreme Court

Couldn't we also phrase that as "a non-partisan and cautious U.S Supreme Court"

hombre said...

"The biggest question now is whether the three liberal justices understand the grave risks of this lawfaring agenda...".

Seriously? Even if Sotomayor and Jackson understand, their loyalty to leftist chaos will dictate their actions. The Court is just another institution to be destabilized.

It is possible that Kagan's enthusiasm for the agenda will be tempered be the recent exposure of rampant antisemitism on the left. Otherwise look for the usual 6-3 division.

Kevin said...

And not one cares a whit for the consequences for the high court.

Oh, on the contrary: They know the truth because in places they openly talk about at parties, they want those consequences -- they need those consequences.

We use words like "democracy," "justice," "Constitution." We use these words as the backbone of a life spent defending something. They use them as a punch line.

MadTownGuy said...

RMc said...

"...an unelected and unenthusiastic U.S. Supreme Court."

The only time anyone ever complains about the judiciary being "unelected" is when they rule in a way they don't like.
"

See: Colorado Supreme Court. Unelected may still be better than elected. See: Wisconsin Supreme Court.

gilbar said...

an unelected and unenthusiastic U.S. Supreme Court.

serious question.. IF we DID elect them, Who would Colorado ALLOW to be on a ballot?
aren't ALL right-wingers GUILTY of insurrection*?

insurrection* not fully and wholly supporting the deep state
"Everything in the State, nothing outside the State, nothing against the State." - Joe Biden

gilbar said...

Serious Question
Assuming that things go on.. HOW LONG? HOW LONG before 34 red states call for a constitutional convention?

Joe Smith said...

Strassel is great on most things.

But liberals are like the scorpion in the fable with the frog.

It is their nature...they can't help it.

Mike (MJB Wolf) said...

“So nice to have Tammy Bruce rather than the blowhard Hannity mucking-up the interview.”

Yes she should have had her own show long ago and radio in LA/SoCal has declined so far without her and Rush and Lykis. I’m so glad I don’t commute anymore given the lack of intelligent talk on the air.

Leland said...

Well played, Kevin.

Kirk Parker said...

Wenn ich 'Novel Legal Theory' höre … entsichere ich meinen Browning!

Jupiter said...

"The biggest question now is whether the three liberal justices understand the grave risks of this lawfaring agenda."

Well let's just have a look-see. Ketanji Brown Jackson? She would not be where she is today if the law had not been hijacked by Democratic free-booters. She can see the butter, right there on the tasty slice of bread, and she knows who spread it, and why. I'm guessing she's all in for destroying the Republic. What could go wrong?

Then there's her Wiseness, the Latina. I think she may actually have some notion that there are laws and they should be upheld. But she apprehends those laws by an essentially emotional process, so there's no telling what they might say until she has listened to them saying it.

Finally, Kagan. Hmmph. I am thinking she may well have some sense of what's at stake. I am guessing she is savvy enough to realize that she got out of Harvard just in time. Apres moi ... Her motivations, at this point, are inscrutable. But I don't see her throwing in with a troika of petulant losers. I think she'll keep her powder dry.

Jupiter said...

"The three liberal judges are sandbags."

What has "sand" got to do with it?

stlcdr said...

How many cases does the Supreme Court hear, and make decisions on, each year?

We likely only hear about the most controversial ones, and the others are pretty ordinary? I really don't know, so can't really comment on the extreme decision making that does or does not take place.

This really all about Colorado, isn't it?

Chuck said...

So Kim Strassel isn’t so much saying, “Donald Trump has an excellent legal case,” as she is saying, “The libs started it.”

Maynard said...

It is possible that Kagan's enthusiasm for the agenda will be tempered be the recent exposure of rampant antisemitism on the left. Otherwise look for the usual 6-3 division.

It would be shocking if the decision was anything other than 9-0.

KBJ does not want to go out on a limb and lose all credibility and neither does Sotomayor. Although a liberal, Kagan has actually read the Constitution.

Rusty said...

"an unelected and unenthusiastic U.S. Supreme Court."
I'm seeing that as a feature. Not a bug. The more the progressives try and divest us of our Constitution, the more I see the brilliance in the document.

planetgeo said...

The current condition of the judiciary in the United States, at all levels, is a complete disgrace. It is totally politicized and partisan. Similarly politicized and partisan prosecutors openly shop their cases to judges and venues/juries who are safely on their "team". It's a mockery, and the public at large is now onto the whole game. Thus, the poll numbers for both Trump and Biden. Both sides know, and confirm, that the serial prosecution/persecution of Trump is an absurd miscarriage of justice.

As for the former pinnacle of the U.S. justice system, the Supreme Court, its non-action isn't really cautious or clever, it's cowardly. It's in a position to end this sick game, and it continues to avoid having doing so. Sad, in every sense of the word.

tolkein said...

The biggest question now is whether the three liberal justices understand the grave risks of this lawfaring agenda... Do they sign up for the campaign with opinions that justify novel legal theories and the judicial usurpation of elections -- in the process inviting more special counsels, more rogue court decisions, more litigation? Or do they recognize this game for what it is, acknowledge the sound legal reasons for why no one has attempted such reckless prosecutions and lawsuits before, and send a message it needs to stop?"
I hope so. But I fear not. I expect at least one to agree with the lawfarers.

hombre said...

"HOW LONG? HOW LONG before 34 red states call for a constitutional convention?"

Hopefully this will never happen. Lefties will find a way to speed up the destruction of the nation by co-opting it.

JaimeRoberto said...

The Dems would be fine with a 6-3 split. It will give them more ammo for packing the court.

Mr. Majestyk said...

"It would be shocking if the decision was anything other than 9-0."

Prepare to be shocked.

Witness said...

as long as we don't admit any possibility that the original intent of the 14th amendment matters, everything will be fine

rcocean said...

I appreciate the sentiment, but its written in that weird passive-agressive, wimpy way that Center-Right writers seem to love. Y'know full of rhetorical questions, and concern trolling of the Left. in this case the leftwing judges. Wow, is this what you signed up for? Gosh.

I suppose the WSJ just can't mount a fullthroated attack on Biden's Stalinist methods and his Gestapo like DOJ along with his leftwing allies in the Judiciary. But that's what is needed.

The whole "Aren't you being a tad unreasonable, Democrats?" doesn't work.

Tom T. said...

No Justice dissented from the decision not to fast-track Jack Smith's case. That suggests some willingness to embrace unity under the current circumstances.

Rich said...

I would recommend reading the scholarly paper by Will Baude and Michael Paulsen. The argument (Republican) that taking Trump off the ballot is undemocratic is actually majorly countered by the fact that the entirety of the events, from coercion of officials to finding votes to Jan 6th, are themselves absolutely undemocratic. You can’t look at it in isolation but across the whole spectrum of events. The Colorado arguments were logical and well studied.

J. Michael Luttig, a conservative former judge for the U.S. Court of Appeals said: “The Fourteenth Amendment itself, in Section 3, answers the question whether disqualification is “anti-democratic,” declaring that it is not. Rather it is the conduct that gives rise to disqualification that is anti-democratic, per the command of the Constitution.

“He had taken an oath to support the Constitution, and he engaged in insurrection or rebellion, or he had provided assistance, aid, or comfort to a rebellion in or around January 6th, when he attempted to overturn the 2020 Presidential election. And he inspired and at least gave aid and comfort to the attack on the United States Capitol for the purpose of interfering with and preventing the joint session from counting the electoral votes for the Presidency, the former President knowing that the electoral votes had been cast for then candidate Joe Biden. That’s a classic understanding of an insurrection or rebellion against the authority of the United States.”

Aggie said...

The Supreme Court reminds me of a set of exasperated parents, listening to the thumping from upstairs and hoping that these damn kids would figure out how to sort their problems out amongst themselves, because they'll be better off for it, in the long run.

Ain't gonna happen when one kid doesn't understand consequences and believes in 'right now', not 'long runs'.

The courts have long done their best to avoid getting involved in elections altogether. Then they started avoiding getting involved, as long as it cost Republicans and protected Democrats. Now they're getting involved to specifically attack Republicans, in advance of any election. The Supreme Court is going to have to get involved.

Static Ping said...

Well, this is the Supreme Court's job. They are there to answer these questions.

If they do not want to do their jobs, there has to be a serious question whether they serve any purpose. We already have a Congress that refuses to do their jobs, and an out of control bureaucracy that makes their own laws despite not having been elected by anyone. If no one wants to do their jobs in Washington, there becomes an existential issue.

narciso said...

well besides what Schumer threatened in 2000, that came to pass in 2022, not fatally but that was just a chance of fate, the defamation campaign against Kavanaugh and Barrett to a lesser degree,

Greg the Class Traitor said...

Rich said...
I would recommend reading the scholarly paper by Will Baude and Michael Paulsen.

Why? It's complete trash, by some TDS infected jerkoffs.

If you want to read some actual scholarly papers on the subject, which demonstrate said fact by actually engaging with the other wide's arguments, read these:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591838
Abstract
Section Three of the Fourteenth Amendment disqualified anyone from serving in the House or Senate, or as a presidential elector, if they had betrayed their oath of fealty to United States and joined the Confederacy during the American Civil War. Whether Section Three accomplishes anything more remains unclear as a matter of history and ambiguous as a matter of constitutional text. Section Three does not expressly (1) apply to future rebellions or insurrections, (2) apply to persons elected as President of the United States, (3) apply to persons seeking to qualify as a candidate for the Presidency, or (4) indicate whether the enforcement of Section Three requires the passage of enabling legislation.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4568771
Abstract
Does the full “sweep and force” of Section 3 of the Fourteenth Amendment disqualify Donald Trump from the presidency? In a new article, William Baude and Michael Stokes Paulsen argue that the answer is yes because “essentially all the evidence concerning the original textual meaning of Section Three . . . points in the same direction . . . .” This sweeping conclusion is not accurate. Establishing the original public meaning of Section 3 is difficult because there is originalist and textualist evidence pointing in different directions. Our research is built on more than a decade of scholarship in areas that are, regrettably, neglected in modern courts and scholarship, but would have been well understood in the 1860s.

The Godfather said...

It seems to me that the easy way for the Supremes to deal with this issue is that there has been no determination by appropriate authority that Trump was involved in an "insurrection". And such determination would have to be made by the federal government. I wonder if even the Democrats on the Court would dissent from that (but if they did dissent from that, they would be self-identifying).

Readering said...

I've read the column. Not a word in Stassel's history about the unprecedented litigation storm after the 2020 election, with POTUS incessantly calling on USSC to short-circuit things and overturn the result. The Court ignored him and the cert petitions filed by red stat AGs and the Republican House. Maybe the Court will do the same here if the DC Court of Appeals issues a well reasoned opinion why presidential immunity does not apply to Smith's DC indictment, ditto the double jeopardy clause. The justices must be suspicious of Trump's bona fides when he now does NOT want the Court to short-circuit things based on one of those 2 doctrines.

Meanwhile Stassel blames the left and Democrats for lawfare for the Colorado case that was brought by Republicans to keep Trump off their primary ballot. Note how Trump has many lawyers, but they are solos with small staff. Some left big firms to take on the radioactive client. Contrast with Bush v Gore, where Bush had titans of the GOP firmament rushing to his side. Alumni include several current Justices. The insurrection litigation may be uncharted territory, but factually we have never seen anything close to Trump's effort to stay in office after losing in 2020, and even after the 2021 inauguration to get back into the White House based on ongoing delusional challenges to the election. None of which Stassel has ever seen fit to comment on.

Bob Boyd said...

How about this:
SC will say the 14th does apply to the President and he can be disqualified if he has been convicted of insurrection. Then, after the primary, the Justice Dept will charge and convict him in DC and disqualify him at the last minute or maybe even after the election.

Narayanan said...

are not sandbags also used for keeping out flood-water?

Narayanan said...

Section Three of the Fourteenth Amendment disqualified
========
is this not attainder ? previously prohibited? to Congress?

narciso said...

https://boriquagato.substack.com/p/the-deep-game-co-strikes-trump-off

stlcdr said...

With regards the 14th amendment, noted that it does not indicate that a conviction is required: "...shall have engaged in insurrection or rebellion...".

So while the person accused (Trump), there must be evidence that an insurrection took place. Has anyone been charged with insurrection? If, of all the persons present on January 6th, any have been convicted of such then there surely would be a legal standing to apply the 14th. This is not the case, because there was no insurrection.

There is a clear significant margin of the population that truly believe this: progressives put the government above all else, as if it were a god, and attack any who go against their god.

mikee said...

I love the use of the word "unelected" to describe the Supremes. I wonder if the author calls the members of Congress "unnominated and unconfirmed" as well, and in a manner just as ridiculously biased.

Marcus Bressler said...

Anyone who uses the term "unelected" in reference to the SCOTUS is a complete nimrod.
We already know, based on his TDS-infused utterings, that Rich IS a nimrod, regardless of whether he has any idea of the U.S. Constitution -- especially as it applies to the SCOTUS. He's probably already sent in his request for a mail-in ballot for the next SCOTUS vacancy. But it might be misdirected to LLR Chuck's address.
Merry Christmas, everyone!

MarcusB. THEOLDMAN

Rusty said...

Readering said...
You may have forgotten, or more likely, not even know of the Bush-Gore kerfluffle. So rather than use the over the top hyperbole of 'unprecidented' use the previous occaision to judge the present situation.
I appreciate your attempt to engage with at least some honesty, but historic acuracy would serve your arguement better. Hardly unprecidented.