The Supreme Court case.... is unanimous and in Trump's favor.

 Here's the full text. From the per curiam opinion:

Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse....

All nine Members of the Court agree with that result.

Our colleagues writing separately further agree with many of the reasons this opinion provides for reaching it. See post, Part I (joint opinion of SOTOMAYOR, KAGAN, and JACKSON, JJ.); see also post, p. 1 (opinion of BARRETT, J.). So far as we can tell, they object only to our taking into account the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it. These are not the only reasons the States lack power to enforce this particular constitutional provision with respect to federal offices. But they are important ones, and it is the combination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular rationale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches. 

ADDED: The per curiam opinion emphasizes the role of Congress in determining that Section 3 applies to someone:

"The Supreme Court announced on Sunday that it would issue at least one decision on Monday..."

"... a strong signal that it would rule then on former President Donald J. Trump’s eligibility for Colorado’s primary ballot. The announcement said Monday’s opinion or opinions would be posted online starting at 10 a.m. 'The court will not take the bench,' it said. The court’s usual practice... is to announce decisions in argued cases from the bench. The justices had not been scheduled to return to the courtroom until March 15...."

From "Supreme Court Poised to Rule on Monday on Trump’s Eligibility to Hold Office/An unusual announcement from the court provided a strong hint that the justices will act the day before the primaries on Super Tuesday" (NYT).

I think we all know that Trump will win. The question is how he will win — whether the issue will be conclusively resolved or left with loose ends to be tied up at some later point in the process.

"I'm not here as an apologist for Donald Trump and I'm certainly not here as a lawyer... but I'm trying to imagine what it would be like..."

"... if the Supreme Court said we're removing the front-running Republican candidate from the ballot and essentially saying to the American people, you won't have the opportunity to vote for him. And I think it would be very, very disruptive in this country. I think it will create a huge reaction and that worries me. It worries me partly because of Donald Trump. There's so much cynicism about our institutions already. And the strength of our democracy are these institutions. You can argue that's why you have to go the way the Colorado court suggests. But I think in the minds of many voters, this would be a subversion. And it would draw very strong reaction."

Said David Axelrod, on CNN last night, before today's oral argument.

Very strong reaction... but what, exactly? Another/"another" insurrection?

"I think that the question that you have to confront is why a single state should decide who gets to be President of the United States."

"In other words, you know, this question of whether a former president is disqualified for insurrection to be president again is, you know, just say it, it sounds awfully national to me. So whatever means there are to enforce it would suggest that they have to be federal, national means. Why does -- you know, if you weren't from Colorado and you were from Wisconsin or you were from Michigan and it really -- you know, what the Michigan secretary of state did is going to make the difference between, you know, whether Candidate A is elected or Candidate B is elected, I mean, that seems quite extraordinary, doesn't it?... Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?"

Said Justice Elena Kagan in today's oral argument in Trump v. Anderson (transcript here).

Kagan's question was reinforced by Justice Ketanji Brown Jackson: "Can I just ask you about... the concern about uniformity and the lack thereof if states are permitted to enforce Section 3 in presidential elections.... I guess my question is why the Framers would have designed a system that would -- could result in interim disuniformity in this way where we have elections pending and different states suddenly saying you're eligible, you're not, on the basis of this kind of thing?"

"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. 

"Thursday’s case arose from a December ruling from the Colorado Supreme Court disqualifying Mr. Trump from the state’s Republican primary ballot..."

"... based on Section 3 of the 14th Amendment. The provision was adopted after the Civil War to bar insurrectionists who had taken an oath to support the Constitution from holding office.... Mr. Trump has attacked the Colorado court’s ruling on at least a half-dozen grounds, though their unifying theme is that the election should be decided by the voters...."

The NYT describes the case — Trump v. Anderson — that is up for oral argument in the Supreme Court this morning.

You can listen in real time at the Court's website, here.

UPDATE: I listened to the entire argument in real time, and I have some things I want to say that require the transcript, but I did think that the conservative Justices accepted the argument that the President is not covered by the text of Section 3 of the 14th Amendment. And I believe that both Kagan and Jackson were concerned about letting the states decide this matter of such great national interest. Sotomayor wasn't strong on the other side. After the beginning, she was quiet for a long time, then spoke up and sounded, I'm sorry to say, lost.

"The fact that a 'none of the above' option could overpower any enthusiasm from the supporters of Ms. Haley, the former governor of South Carolina, is another blow..."

"... to her slim chances of winning the nomination over Mr. Trump, who maintains a commanding lead in polls. It also blunts any effort of hers to demonstrate momentum or score at least a symbolic victory. Mark Reynolds, 56, had planned to vote for Mr. Trump in Thursday’s caucuses. But he stopped by a polling place briefly on Tuesday morning to cast a vote for 'None of These Candidates.' 'It’s just to send a message,' Mr. Reynolds said, noting that the primary itself was a 'waste of time.'"

From "Haley Outvoted in Nevada Primary by ‘None of These Candidates,’ Without Trump on the Ballot/Ms. Haley ran essentially unopposed in the primary, which awards no delegates. The former president will compete in Thursday’s caucuses" (NYT).

1. Even writing this post feels like a waste of time.

2. Nevada has an idiotic system. I resent even having to put effort into understanding it. 

3. "Slim chances"... give me a break.

4. Why is it surprising that "none of the above" did well? I think "none of the above" is just about everybody's preference in any election. But, of course, here, "None of These Candidates" was literally on the ballot, and everyone understood that "None of These Candidates" meant Trump.

5. Elsewhere, people are trying to get "Trump" off all of the ballots. If they succeed, watch for the raging response from the "none of the above" supporters.

Let's read Trump's brief, filed yesterday, in the Supreme Court case about kicking him off the ballot in Colorado.

Here it is.

I like the way the key citation I've been using in my posts on this issue — see here, here, here, and here — appears in the 3rd sentence of the brief:

[I]t is a “‘fundamental principle of our representative democracy,’ embodied in the Constitution, that ... ‘the people should choose whom they please to govern them.’” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783 (1995) (first quoting Powell v. McCormack, 395 U.S. 486, 547 (1969); then quoting 2 Elliot’s Debates 257 (A. Hamilton, New York)).

That's a principle that ought to be kept in mind in considering each of the 5 different grounds for overturning the Colorado Supreme Court's decision:

"Skeptics of disqualification have... argued that, even if Section 3 does cover a former President, it is not 'self-executing'..."

"... meaning that states have no authority to make disqualification decisions under the Fourteenth Amendment unless Congress first passes legislation that authorizes them to do so.... Trump’s petition goes even further, asserting that only Congress, not states, may resolve questions about a Presidential candidate’s qualification.... Trump’s petition also includes an intriguing point that hinges on a sentence in the disqualification clause that has not previously been emphasized: 'But Congress may by a vote of two-thirds of each House, remove such disability.' That means a former government officer who did engage in insurrection or rebellion can hold office after all, with Congress’s permission. The petition argues that the clause, which is about 'holding office,' 'does not prevent anyone'—even an insurrectionist—'from running for office, or from being elected to office,' because it is always possible that Congress will vote to permit him to 'hold' office. That has in fact occurred in the past: multiple Confederate rebels won election to federal or state offices around 1868, and Congress removed their disqualifications. So, even assuming that Trump is disqualified from being President, he is not disqualified from running for President in expectation of Congress later allowing him to take office...."

Writes Jeannie Suk Gersen, in "Could a Trump Win Put His Running Mate in Office? Senate Republicans’ brief in the Supreme Court surprisingly argues just that" (The New Yorker).

If the Supreme Court chooses that interpretation, then electing Trump will become a way to make the VP candidate President, because we would expect Congress to deny Trump that super-majority vote he needs. Trump would still get all the glory of winning and a monumental new complaint against his antagonists. Imagine the effect on his supporters. Where does all that strange new political energy go?

"I don’t quite understand all of these Democrats who say Trump is an existential threat to decency, democracy and maybe life on the planet and then..."

"... insist they’re sticking with Biden instead of another candidate. It’s like refusing to seek better medical care for a desperately sick child because the family doctor is a nice old man whose feelings might get hurt if you left his practice."

Said Bret Stephens, in "The Conversation," with Gail Collins, in "The Election No One Seems to Want Is Coming Right at Us" (NYT).

Collins responds that "he’s done a good job" and his speech on Friday showed "he’s going to campaign against Trump very, very, very hard."

That gets Stephens to blithely/deviously quip: "Well, let’s hope it doesn’t kill him.

"The Supreme Court on Friday agreed to decide whether former President Donald J. Trump is ineligible for Colorado’s Republican primary ballot..."

"... because he had engaged in insurrection in his efforts to overturn the 2020 election. The case, which could alter the course of this year’s presidential election, will be argued on Feb. 8. The court will probably decide it quickly, as the primary season will soon be underway...."

The NYT reports.

I look forward to a quick resolution, and I hope it is unanimous and in Trump's favor. Let's get back to deciding the election on the merits, not disqualifying candidates.

Speaking of disqualifying a presidential candidate...

Here's a famous quote from Gore Vidal: "Any American who is prepared to run for president should automatically by definition be disqualified from ever doing so."

"Enough. It’s time to apply the plain language of the Constitution... without fear of the consequences. Republics are not maintained by cowardice...."

"You don’t have to be a lawyer to comprehend those words. You simply need some basic familiarity with American civics, the English language and a couple of common-sense rules of thumb. First, when interpreting the Constitution, text is king. If the text is clear enough, there is no need for historical analysis. You don’t need to know a special 'legal' version of the English language. Just apply the words on the page. Second, it’s crucial to understand that many of the Constitution’s provisions are intentionally antidemocratic.... Yes, it is undemocratic, exactly as it was intended to be...."

David French expounds on legal interpretation in the NYT, in "The Case for Disqualifying Trump Is Strong."

"Those favoring the disqualification of Mr. Trump insist that there is nothing antidemocratic about constraining the presidential choices of the national electorate."

"The Constitution, after all, contains a number of provisions that deny the people the right to elect whomever they wish. Article II, Section One, for example, prevents the people from electing anyone who is under age 35 or who is a foreign-born candidate. Those qualifications are expressly declared in the text, and they received robust vetting and debate in the ratifying conventions. In the case of Section 3 [of the Fourteenth Amendment], the Supreme Court is being asked to impose new constraints on the democratic process by way of textual implication and in the absence of any public debate whatsoever.... At best, the text of Section 3 is ambiguous regarding the office of president. The Supreme Court should limit the clause to its historically verifiable meaning and scope. Let the people make their own decisions about Donald Trump."

Writes lawprof Kurt Lash, author of "A Troubled Birth of Freedom: The Struggle to Amend the Constitution in the Aftermath of the Civil War," in "Trump Should Not Be Disqualified by an Ambiguous Clause" (NYT).

The fundamental principle is "the people should choose whom they please to govern them." Ambiguity must be resolved in that direction.

Significant chunks.

I don't (want to) believe this:

"There are significant chunks of the American populace that will find it very hard to respect a supreme court decision that keeps Trump off the ballot, and there are significant chunks of the American populace that will find it very hard to respect a supreme court decision that keeps Trump on the ballot."

That's a quote from lawprof Steve Vladeck that appears in this Guardian article, "'Did you just hear John Roberts scream?': US supreme court to have outsized influence in 2024 election Court temporarily waved off request from special counsel prosecuting Trump, but it’ll likely soon have to wade into fray."

It's Christmas, so I'm not delving into the status of the Supreme Court's mystique in the chunky Mind of America. 

After that last post, you may be anticipating that I'll veer off into a discussion of the word "chunk." But I did that, so extensively, in 2020 — replete with a survey of old posts of mine, historical quotes from the OED, an embedded video of the vintage Arnold Stang commercial for Chunky (the candy), and a photograph of a record I inherited from my father that had "a chunk taken out of it, and so I can't listen to Count Basie's 'One O'Clock Jump' or Dinah Shore singing 'Buttons and Bows.'"

I can't do that again!

"I do not believe Donald Trump should be prevented from being president of the United States by any court. I think it’s bad for the country."

Said Chris Christie, whose campaign for the nomination is based on despising Trump.

Quoted in "Disqualifying Trump may be legally sound but fraught for democracy, scholars say/Experts say there’s a strong basis for the Colorado Supreme Court’s decision to bar Trump from the ballot, but the larger political context makes the question one of the thorniest in recent memory" (WaPo).

I'm not going to touch the bait "Experts say." You don't need to point it out. I see it.

I've already said what I want to say, but because I hear my own opinion in Christie's, I'm going to reprint what I wrote on January 26, 2021, when Democrats were impeaching the former President and defending it on the ground that a conviction would provide a basis for disqualifying him from running again. Of course, the Senate did not convict Trump, and today's disqualification effort would make a lot more sense if it had. 

At the time, I wrote:

[I]t's extremely important to remember that there is a "fundamental principle of our representative democracy . . . 'that the people should choose whom they please to govern them.'" 

I'm quoting the Supreme Court case rejecting term limits for members of Congress, which was quoting a case about Congress's power to exclude someone the people have elected. 

The internal quote — "the people should choose whom they please to govern them" — comes from Alexander Hamilton, arguing in favor of ratifying the Constitution: 

After all, sir, we must submit to this idea, that the true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.

I think the presumption should always be against a constitutional interpretation that would restrict the power of the people to choose whom they please. 

The Senate would need to strain the other way to disqualify Private Citizen Trump from running for office again, and that betrays a lack of respect for the people, for the "fundamental principle of our representative democracy." 

Enough fretting that the people can't be trusted evaluating Trump as one of our options. Let the members of Congress get on with proving that they deserved the trust we the people put in them.

And, now, let the various candidates for President prove we ought to trust them and not Trump.

The people should choose whom they please to govern them.

"Once again, Democrats find themselves looking toward American institutions to stop Mr. Trump, whom they view as a mortal threat to democracy."

"For many, it may be more pleasant to think about a judicial endgame that stops Mr. Trump than envisioning the slog of next year’s likely rematch against President Biden. And this time, with Democrats now well aware of how easily he can bend the country’s fragile guardrails — and of the Supreme Court’s conservative majority, which includes three Trump appointees — their optimism is tinged with trepidation."

I'm reading "Democrats Keep Hoping It’s Curtains for Trump. He’s Still Center Stage," by Reid J. Epstein, in the NYT. Subtitle: "As Donald Trump faces a new threat to his political future, this time over the question of ballot eligibility, Democrats again find themselves looking toward American institutions to stop him."

I'd like to think that passage was written with a sense of humor: Democrats out to save democracy long for a solution to Donald Trump that is anything other than defeating him democratically. The judiciary is supposed to swoop in and rescue Democrats from the task of winning the votes of the people. But the Supreme Court isn't stacked with judges who lean in the political direction that disfavors the candidate they loathe. So their hope for a nondemocratic alternative to the next election is pre-crushed.

Is there evidence in that article that the humor is intentional? There are some quotes from Democrats that made me laugh. Especially this, from Biden: "It’s self-evident. You saw it all. He certainly supported an insurrection. No question about it. None. Zero." 

"Will the U.S.Supreme Court Keep Donald Trump Off the Ballot ? Some Initial Thoughts."

From Rick Hasen at Election Law Blog. 

It is... imperative for the political stability of the U.S. to get a definitive judicial resolution of these questions as soon as possible. Voters need to know if the candidate they are supporting for President is eligible....

In the end the legal issues are close but the political ramifications of disqualification would be enormous.... 

Voters need to know if the candidate they are supporting for President is eligible.... and voters need to know if they need to fight for the candidate they are supporting on the substantive merits and not just rely on his opponent's being "disqualified" on some wild legal theory.

"The Colorado Supreme Court has issued an unsigned opinion disqualifying Trump from the ballot...."

The Colorado Supreme Court has issued an unsigned opinion disqualifying Trump from the ballot: "The sum of these parts is this: President Trump is disqualified from holding the office of President under Section Three; because he is disqualified."...https://t.co/Ilwl4e8Wli

— Jonathan Turley (@JonathanTurley) December 19, 2023

From the NYT article about the case:

The Colorado Supreme Court is the first court to find that the disqualification clause applies to Mr. Trump, an argument his opponents have been making across the country. Similar lawsuits in Minnesota and New Hampshire were dismissed on procedural grounds. A judge in Michigan ruled last month that the issue was political and not for him to decide, and an appeals court affirmed the decision not to disqualify him. The plaintiffs there have appealed to the Michigan Supreme Court. 

The cases hinge on several questions: Was it an insurrection when Trump supporters stormed the Capitol on Jan. 6, 2021, trying to stop the certification of the 2020 election? If so, did Mr. Trump engage in that insurrection through his messages to his supporters beforehand, his speech that morning and his Twitter posts during the attack? Do courts have the authority to enforce Section 3 of the 14th Amendment without congressional action? And does Section 3 apply to the presidency?....

"Former President Bill Clinton said... presidents should be able to run for a third term as long as they take off some time after their second term."

All right then...

It's Bill Clinton versus George W. Bush... who do you vote for?
	Bill Clinton!
	George W. Bush!
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