February 8, 2024

"Chief Justice John G. Roberts Jr. asked a series of questions reflecting what seemed to be an emerging consensus..."

"... that the 14th Amendment was not meant to permit states to determine whether a candidate was an ineligible insurrectionist. 'The whole point of the 14th Amendment was to restrict state power, right?' he asked, adding that the challengers’ contrary argument was 'a position that is at war with the whole thrust of the 14th Amendment.' Chief Justice Roberts noted that the challengers’ position would have empowered the former Confederate states to determine whether candidates were disqualified from holding federal office. The 14th Amendment was adopted to constrain states’ rights and empower the federal government, the chief justice said, and it is 'the last place you’d look for authorization for the states, including Confederate states, to enforce the presidential election process.'"

Writes Adam Liptak, about this morning's oral argument, pointing to a passage that I was going to wait until I had the transcript to write about. 

24 comments:

Levi Starks said...

Let’s do a thought experiment.
Let’s suppose all 50(1) states remove Trump from the ballot and he receives (ignoring the electoral) a 51% write in ballot victory.
Who’s the insurrectionist then?

Wince said...

That was Dershowitz’s 14th A original intent argument, in addition to the 14th A not being self-executing.

Mike (MJB Wolf) said...

"The disqualification advocates may have expected a cold reception, but this was perfectly glacial." Jonathan Turley today

Tina Trent said...

Are the unlicensed (without a permit) protesters blocking traffic outside the Supreme Court as this case is in session committing an insurrection?

Kate said...

Roberts finally found a sweet spot. He usually pretzels himself.

Mike (MJB Wolf) said...

The Roberts question in bold text in Althouse's post was one of a flurry of pointed and skeptical queries lobbed at the attorney for CO. "Why?" indeed. Yet so many outside SCOTUS took the CO action in stride. One of the other good questions by Thomas was "Where are other examples of states excluding Federal candidates?" Dude actually sputtered before stammering out a non-answer.

Birches said...

I'm glad most of SCOTUS is able to think beyond next year looking forward and further back than 2016. This perspective is sorely lacking in the pundit class.

NYC JournoList said...

Dersh’s former student behaving exactly as Dersh predicted last night.

Smilin' Jack said...

All the jibber-jabber aside, the SC will decide for Trump, because to do otherwise would likely incite a real insurrection. The SC may not be reversible in this life, but they still fear the verdict of history.

Smilin' Jack said...

All the jibber-jabber aside, the SC will decide for Trump, because to do otherwise would likely incite a real insurrection. The SC may not be reversible in this life, but they still fear the verdict of history.

Freder Frederson said...

Are the unlicensed (without a permit) protesters blocking traffic outside the Supreme Court as this case is in session committing an insurrection?

No, that is far from committing an insurrection. And there were protesters from both side of the issue out there today.

Oh, btw, where did you hear or see that any of the protesters were blocking traffic? Everything I heard was that the protesters were peaceful and both sides were outnumbered by the press.

I guess the first amendment means nothing to you. You apparently believe that the first amendment only is in effect if the protesters get a permit (from the government).

RideSpaceMountain said...

I hereby declare the state of Colorado to be in rebellion. Prepare to feel the power of Dementia Hitler's F-16s.

Joe Biden Is Corrupt said...

It wasn't an insurrection.
It was a riot.

Mr. Majestyk said...

The main attorney defending the CO Supreme Court decision, Jason Murray, clerked for Kagan on the Supreme Court and Gorsuch on the Tenth Circuit. So it was interesting to hear Gorsuch question him, particularly when Gorsuch wouldn't let him weasel out of answering a hypothetical. I would quote the transcript here, but it isn't out yet.

YoungHegelian said...

Even Justice Brown was dubious of Colorado's position. I may be stretching things a bit here, but what I imagine going through her mind was something along the lines of:

"So, here, I've got a bunch of Progessives coming before this n***** and they are arguing in all seriousness for States Rights (barked out in my best Alabama accent)? Uhhhm, what? Trump hasn't even not been found guilty of insurrection, he hasn't even been charged with it! It's basically a meme at this point! If we let Colorado get by with this, we set the stage for every Red State in the country to disqualify minority candidates from the ballot on trumped (no pun intended) up charges. No fuckin' way!"

At least, that's my mind-reading and I'm stickin' with it.

john mosby said...

I’m surprised no one brought up Section 2 of the 14th Amendment, which penalizes states for denying the right to vote, by reducing their seats in the House. It implies race, but doesn’t explicitly say race. You can make a straight-face argument that disenfranchising potential Trump voters fits this section.

Even if you aren’t arguing to reduce Colorado’s House seats, you can use this section as evidence that the writers of the amendment didn’t want states suddenly obviating the votes of big chunks of their population.

JSM

Dave Begley said...

It really is amazing to see the depth of Trump hatred in this country. It is crazy and irrational.

Richard Dolan said...

I also listened to the oral argument this morning. While the outcome of the case seemed clear enough (quite possibly a unanimous reversal), the rationale for that result was much less clear suggesting that it's likely there will be several concurring opinions.

The argument that seemed to get the most traction from the court was put forcefully by Kagan -- just from a common sense view, whether a candidate for president qualifies for the ballot is an issue that calls for a single, national answer, not a bunch of state-by-state determinations that may (almost certainly would) vary. The only justice who didn't signal agreement was Sotomayor, and she was silent on the issue.

Several justices kept returning to historical evidence. Justice Thomas, Kavanaugh, Barrett and Jackson brought up points about the adoption of the 14th Am, Griffin's Case (1868) and how Sec. 3 got framed as it did, and the relationship to the 1870 statute providing a quo warranto remedy under Sec. 3. The upshot of all of those arguments would lead to a reversal as well.

Then there were a series of technical arguments about the text of the amendment -- the distinction between "holding" v. "running" for office, the significance of Congress' power to waive a disqualification, whether the President is an "officer of" the United States for purposes of Sec. 3, and whether Sec. 3 is " self-executing" (a phrase which Alito noted was a misnomer in this context) or requires a Congressional enactment before it can be enforced by state courts (the holding in Griffin's Case). Again, there seemed to be a broad consensus on the court in support of one or more of those arguments -- all of which would also lead to reversal.

My sense from the argument is that the Court will write an opinion shutting down this litigation in state courts, using the historical arguments combined with at least one of the technical, textual arguments. The concurring opinions will go off on the other points.

Also note that the attorney arguing the case for Trump -- Jonathan Mitchell, former solicitor general of Texas and a former Scalia clerk -- was a terrific appellate advocate. Careful, clear, consistently avoided overstating his argument and quick to concede when there was a point that cut against it and then dealt with that point, always answered the court's questions without fighting the hypos. Very impressive performance. If only Trump would consistently retain attorneys of that caliber, he would spare himself a lot of trouble. But you're not going to get that old dog to learn a new trick at his age.

Rusty said...

Dave Begley said...
"It really is amazing to see the depth of Trump hatred in this country. It is crazy and irrational."
We are not dealing with rational people. We are dealing with children.

tim in vermont said...

"It really is amazing to see the depth of Trump hatred in this country. It is crazy and irrational."

Propaganda is a powerful tool, look at what the German Nazis did with it in regards to ginning up hatred. Look at Rwanda. Until you cut yourself off from it, cut out cable news and NPR and the rest of them completely, you will not be able to begin to understand how they manipulate us, with ease. "Yes, Minister" combined with 1984 will tell you all you need to know about how the cabal that runs this country operates.

Josephbleau said...

"Chief Justice Roberts noted that the challengers’ position would have empowered the former Confederate states to determine whether candidates were disqualified from holding federal office. The 14th Amendment was adopted to constrain states’ rights and empower the federal government, the chief justice said, and it is 'the last place you’d look for authorization for the states, including Confederate states, to enforce the presidential election process.'"

I think this is a satisfactory and sufficient branch of the tree to rule on. Obvious and thus neutral, bland. It shifts the blame to past dead people. I guess there is a value to going to a good law school.

Automatic computer discovery of decision trees using court transcripts for use by attorneys plus computation of an objective function cost for each leaf node. Ha, I have disclosed it so it cant be patented!!

Greg the Class Traitor said...

Pulling this over from an earlier post:

This is Sotomayor's final questioning of Trump's Attorney:

JUSTICE SOTOMAYOR: Would that be true if we were to hold more narrowly in a reversal that it's not Section 3 that's at issue but Thornton and others as to whether Section 3 can be enforced by states against the president?

MR. MITCHELL: That would extend to every presidential candidate --

JUSTICE SOTOMAYOR: Exactly.

MR. MITCHELL: -- not just our client. That's correct.

JUSTICE SOTOMAYOR: Not just to yours.

MR. MITCHELL: Yes.

JUSTICE SOTOMAYOR: Okay. Thank you.


Even she can see what a complete and total loser of a case this is. She's "lost" because she knows that Trump is going to win this one, so all she can do by voting against him is tie herself to something so obviously stupid that even she would be embarrassed to support it.

So she's looked for a way to make this not about Trump, not about whether or not Jan 6 was an "insurrection." And she found one.

So she's going to say, probably already has said "make it 'the President is not an Officer under the US', and I'll make it 9-0."

So that's my prediction: 9-0, the 14th doesn't apply to the President, and States do not have the power to exclude candidates from the ballot in Federal elections under Section 3.

Jackson was aggressively asking questions that pushed why it was entirely reasonable for the Presidency not to be covered (Congress was worried about what was happening in Southern States, not the nation as a whole), Kagan and Roberts were both heavily pushing "the 14th isn't about giving States power, it's about taking power away from them", all three of the lefties hate Federalism, the text of the Amendment says :

Section 5
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

So for originalists / textualist this is one place where the Constitution does NOT support Federalism

None of them want to see this case again, in any form.
9-0

Mikey NTH said...

I think it would be a good "thought exercise" to imagine if Red States dropped Joe Biden from the ballot for his non-enforcement of immigration laws at the southern border. That would leave Donald Trump (as a thought exercise) not on the ballot for half of the country and Joe Biden not on the ballot for half of the country. We could have a presidential election with no actual president elected.

Such fun! Such joy! Let's head straight to a modern civil war without regiments facing each other but assassinations, bombings, and death squads! Yay!

JAORE said...

I can't believe the "But it's Trump!" clause did not rule the day.