Following a vigorous debate on the blog about the Supreme Court’s decision to reverse Colorado‘a disqualification of Trump from the ballot, our reader Democracy reviews the article in The Atlantic by Laurence Tribe and Michael Luttig. (It is available on The Atlantic website for a free trial.)
Democracy writes:
I don’t know who titled the piece by Luttig and Tribe in The Atlantic, but I thought it was both brilliant and accurate. The title:
“Supreme Betrayal”
These are some of the most compelling passages in the article:
“What ought to have been, as a matter of the Constitution’s design and purpose, the climax of the struggle for the survival of America’s democracy and the rule of law instead turned out to be its nadir, delivered by a Court unwilling to perform its duty to interpret the Constitution as written. Desperate to assuage the growing sense that it is but a political instrument, the Court instead cemented that image into history. It did so at what could be the most perilous constitutional and political moment in our country’s history, when the nation and the Constitution needed the Court most—to adjudicate not the politics of law, but the law of the politics that is poisoning the lifeblood of America.”
Bam!
“As the extraordinary array of amicus briefs filed in Trump v. Anderson made clear, the voluminous historical scholarship exploring the origins of the disqualification clause and its intended operation left no genuine doubt that the Colorado Supreme Court got it exactly right in its decision explaining why the former president was ineligible to ‘hold any office, civil or military, under the United States,’ certainly including the presidency.
The Colorado Supreme Court entered into some extensive fact-finding in declaring Trump an insurrectionist. None of those facts has been questioned, even at the Supreme Court, where the justices just tiptoed around the factual issues and pretended they didn’t exist. Oh, but they did:
Back to Luttig and Tribe, and the three “liberal” justices:
“For Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—who wrote a separate concurrence that in parts read more like a dissent—we can only surmise that any discomfort they felt was outweighed by the extra-constitutional allure of going along with the other justices on the decision’s bottom line and thus enabling the nation’s electorate to work its will, rather than the Constitution’s. Those three justices took the opportunity to distance themselves from at least part of what the Court’s majority did by criticizing its ‘attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.’ Sotomayor, Kagan, and Jackson convincingly dispatched as ‘inadequately supported as they are gratuitous’ the majority’s unnecessary holdings that only Congress can enforce the disqualification clause and that Congress’s implementing legislation must satisfy the majority’s made-up insistence upon ‘congruence and proportionality.’ Those three justices left in tatters much that all the other justices, with the exception of Amy Coney Barrett, wrote about the operation of the disqualification clause against federal officeholders, making plain that the majority’s ‘musings’ simply cannot be reconciled with the Fourteenth Amendment’s language, structure, and history.”
Luttig and Tribe note clearly that there were two “majorities” in this case. There was the 9-0 majority, that some commenters here cling to, and there was the 5-4 majority that went w-a-y too far in insulating Trump from disqualification even though he IS an insurrectionist. And that 9-0 majority? Luttig and Tribe state that the step “that all nine justices took represents a constitutionally unforgivable departure from the fundamental truth of our republic that ‘no man is above the law.’ ”
And that Colorado decision?
“… the week-long trial by the Colorado state court, which had indisputable jurisdiction to consider the matter, undoubtedly more than satisfied the constitutional requirements for disqualifying the former president under Section 3. At that trial, he was afforded every opportunity to defend himself against the charge that he had personally ‘engaged’ in an ‘insurrection or rebellion’ against the Constitution. Not a single justice suggested that the process was less than what the former president was due. That trial ended in a finding by ‘clear and convincing evidence’ that he had not only engaged in that insurrection but had orchestrated the entire months-long effort to obstruct the joint session’s official proceeding, preventing the peaceful transfer of power for the first time in American history. Not a single justice suggested that a more stringent standard of proof was required or that the courts below applied an insufficiently rigorous definition of insurrection. No justice suggested that the First Amendment or anything else in the Constitution shielded the former president from the reach of Section 3.”
And yet they shielded him.
Luttig and Tribe conclude with this:
“Our highest court dramatically and dangerously betrayed its obligation to enforce what once was the Constitution’s safety net for America’s democracy. The Supreme Court has now rendered that safety net a dead letter, effectively rescinding it as if it had never been enacted.”
I’m curious. Is there anyone commenting on this blog who genuinely believes that Trump is NOT an insurrectionist?
Trump is not only an insurrectionist, but he is an insurrectionist several times over. It needs to be noted that HE LED SEVERAL SIMULTANEOUS INSURRECTION SCHEMES: using the mob to delay or stop the certification of the election results, pressuring the VP not to accept the election results, submitting fake votes by fake electors, pressuring state voting officials to “find” and disqualify votes, bringing frivolous cases before the courts to overturn vote results–cases that relied upon the hope that judges or justices appointed by Trump would decide unlawfully for their guy, attempting to instigate a popular insurrection via false popular propaganda about ballot mules and rigged voting machines. For a start.
So, that is SIX separate instances of insurrection–attempts to overthrow the incoming government chosen lawfully by the people in a free and fair election in accordance with the Constitution and other laws of the land, both federal and state. TRUMP IS AN INSURRECTIONIST MANY TIMES OVER.
According to MSNBC Trump is bringing Paul Manafort back into his campaign. This is “Groundhog’s Day.” The lying, cheating and stealing are bound to get worse.
Trump needs money. For a LONG time, when he was in such a predicament, he called on his Russian friends. Who better, then, than Manfort?
Manafort shared campaign data with a Russian agent. He lied, cheated on his taxes, and was convicted. Trump
Pardoned him.
I recognize that it’s common to define an insurrection as “a VIOLENT” attempt to overthrow a government, but I think that a dumb definition, and here’s why: there is no scale to determine what constitutes violence. Disenfranchising millions and millions of voters is doing violence to them.
By that definition, violating the Voting Rights Act could be interpreted as insurrection.
Suppose that a mob of 120,000 Jaredians shows up at the Elbonian Capitol, demanding that the president step down so that Jared Kuschner can take her place. The president does this. No violence occurred. Was this not an insurrection?
The beginning of a new era in Elbonian history: The Jaredian Griftinate.
And that is a problem because?
It’s an example of a definition of “insurrectionist” that is much more attenuated and nuanced than the classic heartland example of joining the Confederacy. The further from the heartland cases fall, the weirder it will seem that a state could use that as the basis to unilaterally determine the results of a national election.
State legislators who vote to sign into law a redistricted map that is later found to violate the voting rights act. Insurrectionists, all obviously ineligible to hold public office?
Remember insurrection isn’t the only category of bad men in Section 3. There’s also anyone who “gives aid” to an “enemy of the United States.” What the hell does that mean? Nobody thinks that a red state secretary of state wouldn’t be able to make mischief with that clause?
I think this stuff is less clear and obvious than many seem to think.
Good points all.
Oops. Sorry about the switch from the hypothetical present tense to the past tense, there.
As expected, Trump once again, escaped, prosecution, as he’d managed to, “insert” the Supreme Court justices who favored the, conservatives, and besides, which justice would be willing to, cast the member of her/his, political party, out of the, game???
A “Democracy” needs to exist, in the first place, before it can be negated. Bang the demo-drum ’till the next electoral college dance , and the SCOTUS will still be calling the shots. Rethinking the mythology, entrenched in the dominant fairy tales, won’t happen by repeating them. Perpetuating the lavish myths, that enable the few to rule over the many, is a GIFT, to the “Powers that Be”.
It’s inconceivable to even remotely attempt to fathom that this is where we’ve gone in America, that the Supreme Court would, in essence, both defend as well as insulate the actions of the former president by simply ignoring section 3 and, thereby, effectively re-writing the Fourteenth Amendment. They don’t believe in anything greater than themselves; all they believe in is saving their own asses in some capacity. No one has any temerity to stand up to the Spent Orange Vomitus.
Democracy has a comment about how some commenters here “cling” to the notion that this was a 9-0 decision, which of course it was. But I have a question that for those who see this as a 5-4 decision.
Every Justice believed that Section 3 was not self-executing, that states could not use Section 3 to remove candidates for President from the ballot, and that Colorado’s decision to remove Trump should be reversed. That was unanimous.
Five justices believed that only Congress may enforce Section 3, and that the vehicle by which that must happen is legislation.
Four justices believed the Court should not decide the question of how and by whom Section 3 may be enforced.
It appears to me that virtually every commenter who has weighed in agrees with the four justices in the “minority” on that question of whether the Court should decide how and by whom Section 3 may be enforced.
Question for those commenters: assuming for these purposes that Section 3 is not self-executing and states may not enforce (which is rhetorical assumption you have to start with if you think the “minority” got it “right” in this case), how do you think Section 3 should be enforced?
Sorry for some gibberish in that final paragraph. This is what happens when you use a phone to type semi-complex thoughts.
Flerp: It’s pretty simple . . . For whatever reason . . . ignorance or corrupt intent, SCOTUS abdicated their Constitutional authority.
Colorado wasn’t trying to do it’s own thing. They were laying out the argument for our obtuse Stupid Court of the United States. . . . so that it could be applied to all of the states through their Constitutional authority . . . which again, they chose to abdicate. At least the “four” however tacitly, acknowledged that abdication, by words (4) and by actions (9). CBK
CBK, yes! Just as one state brings a case on abortion to create a national standard, CO brought this case in the expectation that the Court would uphold the Constitution.
Diane: Yes . . . and also Colorado laid out THAT and WHY Trump is guilty of insurrection–did all of SCOTUS’ work for them.
That lawyer who was arguing the Colorado case did everything but openly embarrass the judges by saying something like: DO YOUR JOB! CBK
I think that Section 3 should be enforced by the executive branch of the federal government–just as it was the executive branch, not the legislature, that disqualified Couy Griffin in Arizona, and sought to disqualify T***p in Colorado, Maine, and Illinois.
Doesn’t that lead to the problem where the branch controlled by the President would be disqualifying the candidate running against the President?
Bill,
That’s a reasonable suggestion but Trump and his cult would scream that Biden was removing his opponent. The SCOTUS made Section 3 inoperable unless one party wins a landslide election. Section 3 was intended to keep former Confederates who had taken an oath to the Constitution from returning to FEDERAL and state offices. SCOTUS neutered that admonition.
It also would lead to the problem where a president could immunize himself against Section 3 by completely controlling whether to invoke it.
Bill Rosenthal: Just because the GOP Trumpers threaten bloodshed and cannot take NO for an answer . . . is not a reason for SCOTUS to abdicate their authority and then try to pass the buck. CBK
I wonder if the SCOTUS considered the possibility that disqualifying Trump (the Savior) might produce a mob of thousands of heavily armed cultists surrounding the Supreme Court building and storming it.
Diane: Ever since I heard (from Romney’s book) that Trump and his goons had threatened GOP Congresspeople and their families during his impeachment trials. . . and that’s why none voted Trump “off the island,” . . .
I have wondered if any law enforcement agency (DOJ?) is following that up.
But the further Trump gets backed into a corner, the easier it is to think he would do ANYTHING and enlist ANYONE to save himself.
I think it’s more likely that SCOTUS justices WERE/ARE threatened and intimidated than to think that they were/are not . . . except for those who do not need to be. CBK
I have wondered why the FBI never raided Trump’s golf club in Bedminster, NJ, because they know he took boxes of documents there.
I bet Jack Smith wishes he had brought Trump to trial in DC. Judge Aileen Cannon is determined never to have him tried.
Diane: My guess is that lots occurs in law enforcement circles without public knowledge (rightly, at least at first–save the truth for the historians?).
One can only hope those who are involved, say, with the FBI/CIA, etc., are both aware of the danger and taking steps to avoid it.
On a related point . . . I was glad to see John Roberts trying to plug loopholes that occur so often when people can “forum shop.” Like with Pence on January 6th, . . . once in a while, some of these birds do the right thing. CBK
I’m not a lawyer just a voter, but here’s my two cents. I think Section 3 should be self-enforcing. The language is crystal clear. Anyone who previously swore an oath to the Constitution and later participated in an insurrection is barred from state or federal office.
Did Trump swear an oath to the Constitution? Yes.
He put his hand on the Bible and swore to these words:
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
Did he participate in an insurrection against the Cobstitution, which describes the terms of a peaceful transfer of power?
He stirred the mob to march on the U.S. Capitol as the members of Congress were counting the electoral votes. He told them to “fight like hell or you won’t have a country any more.” He watched the mob terrorize and desecrate the hallowed halls of the Capitol, sending members of Congress to flee for their lives. He waited hours before he called off the mob.
Yes, he incited and encouraged an effort to stop the peaceful transfer of power.
If SCOTUS consisted of nonpartisan justices (Luttig is an example, a Republican dedicated to the Constitution), the Court would have upheld the Colorado decision and removed the oath-breaking insurrectionist from the ballot nationwide. But because a majority of the justices were chosen for their rightwing credentials, the plain language of Section 3 was ignored.
An oath-breaking insurrectionist will be the Republican candidate for President. The men who wrote Section 3 would be appalled. Might as well have allowed Jefferson Davis to run in 1868.
Please laugh out loud the next time anyone refers to these partisan justices as “originalists” who abide by the intent of those who wrote the Constitution and its amendments.
All that is fair. I am just pushing back against the idea that this result was reached by a conservative majority. Sotomayor, Kagan, and Jackson all believed that Section 3 was not self-executing and that Colorado lacked the authority to remove Trump.
To the extent those three justices (plus Coney Barrett) disagreed with the other five justices, that disagreement was about who other than states has the authority to enforce Section 3. Hence my question in this thread. If people truly believe the four judges in the “minority” got it right, I’d like to see how they think that question should be answered. Because it’s not at all clear to me.
I gave my answer. I believe it’s self-executing. If the men who wrote it thought it was not, they would have added procedures to ensure that Jefferson Davis or some other Confederate leader would never run for the Presidency.
If that puts me at odds with all nine justices, I don’t care. My reasoning makes more sense than theirs. They acted from ideology, partisanship, or fear, not reason.
A reasonable court would have adhered to the plain language of Section 3.
That’s not an answer to the question I posed, but fair enough, I hear you.
Please laugh out loud the next time anyone refers to these partisan justices as “originalists”
Exactly
To put a finer point on it, this is just wrong: “If SCOTUS consisted of nonpartisan justices (Luttig is an example, a Republican dedicated to the Constitution), the Court would have upheld the Colorado decision and removed the oath-breaking insurrectionist from the ballot nationwide. But because a majority of the justices were chosen for their rightwing credentials, the plain language of Section 3 was ignored.”
The decision to reverse the Colorado decision was UNANIMOUS. This was not a decision by a bare majority of conservative justices.
Do you think the language of Section 3 is ambiguous? I don’t.
I believe the three liberal justices went along with the majority. I assume they had their reasons, which I don’t know.
That doesn’t stop me from disagreeing.
If you believe in reading the Constitution as it was written, Section 3 bars oath-breaking insurrectionists from holding federal or state office. It includes means for Congress to nullify their disqualification. It says nothing about how to apply the disqualification because its meaning is crystal clear. Anyone who took the oath and then participated in an insurrection is disqualified from federal or state office.
That’s straightforward. No ambiguity.
The three liberal justices were the majority. It was unanimous. Their reasons for joining the unanimous decision were that they agreed with it.
Yes, I think there are ambiguities in Section 3. That would counsel in favor of looking at the historical record to see what can be learned about what the drafters intended. (If there are no ambiguities, then there’s no reason to even consider legislative intent.)
Diane, you make many good points, and I wonder if the disagreement comes from a question that democracy asked at the end of the post:
“I’m curious. Is there anyone commenting on this blog who genuinely believes that Trump is NOT an insurrectionist?“
Some people who disagree with you and democracy may think that democracy’s question is irrelevant, and thus don’t want to commit either way. Maybe Trump is, maybe he isn’t, who can say for sure? But I don’t think it is an irrelevant question. I think many people who are normalizing this Supreme Court decision aren’t willing to acknowledge that Trump is an insurrectionist.
This isn’t a hypothetical. This is Trump and his actions right in front of us. If Trump’s actions don’t qualify him as an insurrectionist (regardless of one’s opinions on the SC decision), then what’s the point in talking about hypotheticals as it seems as if no one who is in political favor with the powerful can ever be called an insurrectionist anyway.
Is there anyone commenting on this blog who genuinely believes that Trump is NOT an insurrectionist?“
I think it is possible that there are people commenting on this blog who genuinely believe that Trump may or may not be an insurrectionist, and there are two sides to that, and that would affect their view of this.
Diane: Yes, I laugh out loud when I hear “originalist.”
But Tribe and Luttig answered the enforcement question when they used the term Supreme in the title of their paper.
By the implication of belonging to the federation, just by merely being a “State” in the “United States of America,” those states have already accepted the authority of the U.S. Constitution. The Court and democracy have already lost if the question of enforcement even gets on the table.
In the Colorado case, again SCOTUS abdicated their “Supreme” authority. Whereas in Texas, they just gave it away.
I think the Court doesn’t know who the hell they really are. CBK
NYC public school parent,
I think there’s a reason – or lots of reasons – why the Supreme Court did not address the question of whether or not Trump is an insurrectionist. If they DID address the findings of fact of the Colorado Supreme Court, then they would have HAD to allow Trump’s removal, OR blatantly ignore or overrule the Colorado Supreme’s facts…which by ignoring the facts of the case is what they did.
Perhaps the “liberals” thought by agreeing to the “let’s avoid chaos” hysteria, they could easily kick the can down the road…except the Court conservatives pulled the rug out from under them.
Weird thing. In an earlier case on state term limit requirements on members of the House and Senate, the Supreme Court ruled that states could NOT impose term limits on federal elections. But Clarence Thomas basically said that states could do whatever they wanted with elections….that AIN’T what he said about Colorado and Section 3.
I don’t understand this question.
The states ALREADY enforce this!!
Multiple times states have removed presidential candidates because they were not Constitutionally eligible. That is a fact!
The question of who enforces this was never even a question UNTIL a right wing Republican insurrectionist was protected by a system of co-opted Republican Justices and judges to whom clings an odor of mendacity.
The odor of mendacity that clings to these Republican judges and justices is extreme.
The 3 non-right wing justices – in bending over backward to give Trump every opportunity – made their ruling about the lack of time between the lower court’s ruling and the primary election, and that was naive of them not to recognize that Republican judges use delays to help powerful Republican defendants.
But none of those 3 justices falsely asserted – as the right wing majority did – that the insurrectionist clause intended something that it did not.
You are correct that you did not understand the question.
Diane Ravitch asked you to stop this intentional rudeness. And yet you simply ignored her. Stop replying simply to insult me – if it makes you shut up, then I concede I lack your superior intellect, flerp! Your thinking far exceeds mine in every comment we make.
Now can you please stop replying to my comments by telling me how I just don’t understand (with the clear implication that you can’t be bothered to explain how I am wrong to such an inferior creature such as myself).
Good god you run to the teacher quickly, don’t you. If you don’t like my responses to you, stop responding to my comments.
Re-read my comment. I posed a question there. You said you didn’t understand it and it truly appears you didn’t. For reference, the question is the last paragraph in my initial comment. If you have an answer to it, have at it. So far only Bill has tried. I think it’s a useful exercise.
I’ll help you out and reprint the question here. If you still don’t understand it, don’t bother replying. If you do, I’d like to see your answer.
“[A]ssuming for these purposes that Section 3 is not self-executing and states may not enforce (which is rhetorical assumption you have to start with if you think the “minority” got it “right” in this case), how do you think Section 3 should be enforced?”
Here it is again with the typos fixed:
““[A]ssuming for these purposes that Section 3 is not self-executing and states may not enforce it (which is the assumption you have to start with if you think the “minority” got it “right” in this case), how do you think Section 3 should be enforced?”
I do not assume that Section 3 is not self-executing.
You don’t have to actually believe it (although Sotomayor, Kagan, and Jackson do). It’s a hypothetical and all hypotheticals require you to accept the underlying assumptions presented by the hypothetical.
Yes, ofc
If I were a Justice, I would have dissented. How many amendments to the Constitution have Congressional legislation explaining how to make them mean what they clearly unambiguously say?
I don’t care what other justices say. The language is clear: anyone who took an oath to uphold the Constitution and then participates in an insurrection cannot run for federal or state office. Are you suggesting that Trump played no part in summoning the mob on Jan 6 (I read his tweet: “Come to DC on January 6–will be wild!”). Then his incendiary speech. Then his inaction as the mob threatened Pence, Pelosi, and other officials, broke windows and trashed the Capitol.
Did he participate in the insurrection?
I say yes.
I,too, do not assume that it is not self-executing. That’s entirely without basis in the text and entirely ahistorical.
I think I’m slowly coming to that same conclusion myself, Bob. I think it’s probably a self-executing provision that is capable of causing massive political problems that the drafters didn’t fully anticipate.
Nailed it, Flerp!!! xoxoxo
Bob, can you think of any amendment of the Constitution that is null until Congress passes legislation to explain how to implement it? I can’t.
Now, I cannot.
OMG just stop!
Done!
It might be interesting to discuss a hypothetical where the 26th Amendment wasn’t self-executing. Could a bunch of conservative states pass a law that requires voters to be 21 or 25? And could a right wing Supreme Court rule that the 26th Amendment isn’t self-executing until Congress passes a law?
Or here’s one that seems fairly likely when the Christian far right takes over: Alabama rules that only men can vote. And the Supreme Court rules that the 19th Amendment isn’t self-executing.
Those amendments also have the clause “Congress shall have power to enforce this article by appropriate legislation.” But I don’t think any Constitutional scholar was arguing that states were still barred from allowing women or 18 year olds to vote until Congress passed a law.
States were supposed to uphold the law. Is there another Constitutional amendment that isn’t self-executing as a default, and then Congress steps in when the states refuse to follow the Constitution. This self-executing requirement seems to be the opposite. That states don’t have to follow the Constitution until Congress passes a law forcing them to do so.
It just seems like another invented right wing requirement that we normalize that will eventually bring about the end of democracy — with Supreme Court approval!
It seems like a slippery slope where there are no longer constitutional rights that a minority can claim unless the majority votes anew to give them those rights.
That’s fine and that’s a different exercise. The point of my hypothetical was to draw out what as a practical matter is truly at stake in the concurring opinions filed in the Colorado case. In other words, what, as a practical matter, do Sotomayor/Kagan/Jackson+Barrett disagree with the other five justices about. Because they don’t disagree about whether Section 3 is self-executing or whether states can enforce it.
And I’ll add that the point of this hypothetical is to push back against the instinct that so many (not just here in these comments) seem to have to view this decision as a clash between a conservative majority and a dissenting minority. Because if what really mattered was the clash between the five conservatives who explicitly endorsed the holding of the per curiam opinion and the four justices who rejected it as unnecessary, people should be able to articulate the nature of that clash and what the practical implications are. That no one really seems able to do that or interested in doing it strongly suggests that it isn’t the real dispute people are concerned about.
^^perhaps what I should have given in my hypothetical is that the Supreme Court decides that a state may NOT follow the Constitution enforce the law that gives women or 18 year olds the right to vote because those amendments are not self-executing, but first need a vote from Congress.
Why wouldn’t be the next step in the demise of our democracy?
“Because if what really mattered was the clash between the five conservatives who explicitly endorsed the holding of the per curiam opinion and the four justices who rejected it as unnecessary, people should be able to articulate the nature of that clash and what the practical implications are.”
I thought that is what Luttig and Tribe did in The Atlantic article.
Supreme Betrayal came about because of Supreme Fear.
Fear of doing their job.
“Supreme Court Justices are Federal Officers. As such, they take the same oath of office as all other Federal Officers, which is a Constitutional Oath. They also must take a Judicial Oath. In practice, they are usually combined into one oath.”
If Traitor Trump succeeds in lying and cheating his way into the White House again in 2025, fear of those who took the oath to defend the US Constitution Against all enemies both foreign and domestic will be the reason.
My prediction. Trump loses to Biden in a landslide.
I wouldn’t bet against it.
Yeah, definitely insurrectionist many times over. But you can’t have states removing people from ballots based on mere accusation. We know where that would go. Half the states would remove Biden because of Hunter’s laptop. Seems like the SCOTUS job was to determine some baseline for establishing the legitimacy of charges based on the disqualification clauses of the 14th amendment. Like, say, why not grand jury indictments?! And then the court would need to stipulate, should that bar be reached, that the prosecution of those charges must be given due process before the accused can be determined qualified or disqualified from holding federal office. Instead, as I understand it, they not only overruled Colorado’s decision but effectively delayed Trump’s trials, again, and preemptively decided that even if he were convicted of insurrection the court will not enforce the 14th amendment. That is a failure of their oath to protect the constitution and, again, sounds a lot like a constitutional crisis to a poor retired school teacher like me. I kinda of get why the non-horrible judges went along with overruling the Colorado decision but do not understand at all why they did not more forcefully dissent or protest the court’s effective nullification of the insurrection clauses of 14th amd. At any rate, I still think without a whole bunch of cheating– which, mind you, many in the GOP will be working hard at through Nov– Biden beats Trump again. Nonetheless, the failure of SCOTUS and the legal system in the Trump era is staggering and hopefully a sobering wake-up call that partisan Republican conservative participation in federal governance is essentially corrupting and weakens America’s future.
Well said
Jct2,
That makes sense. The Court should have laid out the guidelines instead of handing it off to a deadlocked Congress. You are right: they nullified Section 3 of 14th amendment.
jct2,
I agree with many of your points. But, remember that it’s one of the right wing’s false narratives (that frighteningly now seems to have become accepted “truth”) that Colorado removed Trump from the ballot “based on mere accusation!” They didn’t.
There was a trial. Judges weighed credible evidence. “The court found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three.” (From the Colorado Court’s opinion). The one undisputed fact is that even the District Court that originally decided Trump could not be removed DID find that he was guilty of insurrection! And it wasn’t based on “mere accusation”.
That’s what bothers me about the slippery slope arguments made by people who defend the Supreme Court pro-Trump decision (but I am not sure that the Supreme Court itself made them, since obviously they knew there was a trial and thus there was due process.)
There is no danger that Biden would be struck off the ballot in another state because striking a candidate off the ballot by a state ALREADY requires credible evidence! ”Based on mere accusation” is the lie that the pro-Trump folks WANT us to think! And the irony is that “mere accusation” is the standard that Republicans and their judges use – often with our consent! Thus admired and respected (vomit) Republican Federalist Society Judge Scott McAfee invoked “appearance” (not evidence) when he publicly excoriated Fani Willis, all but demanding that a state agency severely punish her based on her stinking of the “odor of mendacity”. That’s was NEVER the standard Colorado used to remove Trump from the ballot — but it IS the standard that so many people condone when Republican judges like McAfee use it against Democrats. I just wish more people would have talked about the slippery slope and/or massive political problems that Judge McAfee’s actions caused – because when all Republican judges start using those tactics to remove or undermine prosecutors that powerful Republican defendants don’t like based on “accusations” and “appearance”, it is certainly going to get ugly.
But that is NOT what happened in Colorado. The District court ruled Trump was an insurrectionist based on EVIDENCE. Not “appearance”. There was a trial. People seem to forget that. They also forget it was REPUBLICANS and independents who asked for an insurrectionists’ name to be removed from their primary ballot.
That’s why it mystifies me – and scares me – that some people seem to have embraced the argument that if Colorado was allowed to remove an insurrectionist after a trial where the credible evidence proved Trump was an insurrectionist, we would then have to fear that some Republican state would remove Biden. Why? Is there credible evidence that Biden committed insurrection? There isn’t. So what they are actually saying is that they believe that Republican-led state’s judges would be even more corrupt than Scott McAfee, and they would remove Biden simply because he is a Democrat, in response to any other state removing Trump after a trial where evidence PROVED Trump was an insurrectionist.
And THAT is the real slippery slope. That we actually assume that it would be perfectly reasonable and normal for Republican states to retaliate in response to Colorado’s decision, and not a gross violation of the Constitution and norms of democracy!
Colorado had a trial. The trial proved that Trump was an insurrectionist. Republicans and their enablers say it is wrong for Colorado to punish Trump for committing a crime because that would open the door for a Republican-led state to remove Biden for “retaliation”. But once you have presented as a real possibility that a Republican state could remove Biden on a whim in retaliation for holding a Republican to account through due process, then that danger still exists regardless of this Supreme Court’s decision! Who cares about the Supreme Court decision when we now have folks telling us that there is a real possibility that Republican states and Republican judges will retaliate against Democrats if anyone ever tries to bring a connected Republican to account. Maybe a Republican state will say Biden is a murderer and throw him in jail! Since we have now conceded that Republican states and their courts are like Putin’s Russia and are used to retaliate, not to judge evidence.
What the Republicans hope we won’t notice is that Colorado did NOT act on a whim. Trump wasn’t removed from the ballot based on “mere accusation”. Trump was removed from the ballot after a trial where the evidence was presented, tested, and while there may be cases of insurrection in the future where the the evidence of guilt isn’t overwhelming, THIS IS NOT ONE OF THEM. And if we are now saying that Republican states will just try to throw Democrats in jail and punish them for crimes without evidence, but just to retaliate, then we have a far bigger problem than any potential problem from Colorado removing Trump from the ballot. I find it weird that people aren’t more concerned about that. We actually seem to accept that Republican judges in Republican states do not care about evidence and would simply retaliate against Democrats to protect Republican defendants. And the people who invoke that to warn how bad Colorado’s decision is are not even outraged about that!
^^”Although Colorado’s expedited statutory procedure for litigating election disputes may be unfamiliar nationally, our courts, particularly the Denver District Court (the proper venue when the Secretary is the named respondent), are accustomed to section 1-1-113 litigation. Such cases arise during virtually every election cycle, and this court has exercised jurisdiction many times to review these disputes. E.g., Kuhn, ¶ 1, 418 P.3d at 480; Frazier, ¶ 1, 401 P.3d at 542; Carson v. Reiner, 2016 CO 38, ¶ 1, 370 P.3d 1137, 1138; Hanlen v. Gessler, 2014 CO 24, ¶ 3, 333 P.3d 41, 42. Moreover, it is not uncommon for section 1-1-113 cases to require courts to take evidence and grapple with complex legal issues. E.g., Ferrigno Warren, ¶¶ 9–13, 462 P.3d at 1083–84 (describing a district court hearing, held one month after the petitioner filed her verified petition and after the parties filed briefing, to determine whether “substantial compliance” was the appropriate standard for a minimum signature requirement, how to apply that standard, and 28 whether, based on a four-factor test, a prospective U.S. Senate candidate satisfied that standard); Kuhn, ¶¶ 4, 15–18, 418 P.3d at 480–82 (describing a district court hearing to assess evidence and testimony concerning the residency of seven circulators of a petition to reelect a congressional representative); Meyer v. Lamm, 846 P.2d 862, 867 (Colo. 1993) (requiring an evidentiary hearing in district court that involved, among other things, the content of ballots cast for a write-in candidate). Even early cases recognized that the original 1894 provision “contemplate[d] the taking of evidence where the issues require[d] it.” Leighton v. Bates, 50 P. 856, 858 (Colo. 1897).”
JCT: They know they cannot win fairly, so they blow up the field of reasonable discourse (and truth), and take the ball home with them when they leave. CBK
Flerp and Bob: Flerp writes “I think I’m slowly coming to that same conclusion myself, Bob. I think it’s probably a self-executing provision that is capable of causing massive political problems that the drafters didn’t fully anticipate.“
I think the writers anticipated as much as any writer can when writing a Constitution for a democracy. Evidence? “. . .if you can keep it.”
It’s “self-executing” because the power is not in the print but in The People. And you cannot glue real people into a document.
Unless “WE” can understand how that shift of power works (from paper to people), then, as any good little fascist knows, the next step is for scared-witless relatively authentic people to write more laws that other people can ignore or “misinterpret,” in true Orwellian fashion, until OF COURSE! WE are so law-heavy that no freedom is left for anyone EXCEPT for the authority guy and his goons, who wouldn’t know real freedom if it bit them in the . . . face. CBK
Shredding the Constitution to “Save” Democracy
Have you ever heard of Frank Walter Dworak? How about Dimitri Anastasios L. Panagopoulos? Daniel Clyde Cummings?
Maybe you’ve heard of Zoltan Gyurko Istvan, who is a “transhumanist.” Or Rachel Davis, who on her Facebook page wrote about “our four fathers who created the Constitution.”
Maybe you are more aware of Vermin Love Supreme, who like those listed above, ran for president in 2020, and calls himself a “social anarchist.”
According to the Federal Election Commission, in 2020 1,212 people filed to run for president, either as a party candidate (and actually, there are lots of parties), as an independent, or as a write-in. We typically know about very few of these people, for a variety of reasons.
As Ballotpedia explains, there are “party nomination requirements, that differ by state…” In other words, there is a real “patchwork” of rules and regulations as to who gets on the ballot in each state, and who does not.
There’s another set of rules and regulations – that often differ by state – for independent candidates, and there’s a third set for write-in candidates.
As Ballotpedia puts it, “a candidate for president of the United States must meet a variety of complex, state-specific filing requirements and deadlines.” Patchwork upon patchwork upon patchwork.
In 2020, Pennsylvania only had three candidates on the final ballot for president. New York, right next door, had five. California had six. Idaho had seven, and New Jersey had eight. Minnesota, and Iowa and Utah had nine. Arkansas and Louisiana had 13. Vermont and Colorado had twenty-one.
So, can anyone — ANYONE — claim legitimately that there is “uniformity” in who gets on the presidential ballot in the fifty states?
It isn’t much of a jump from here to the Colorado Supreme Court case that was overthrown by the US. Supreme Court.
As I mentioned earlier, the Supremes actually made TWO decisions, a 9-0 general concurrence and a 5-4 split decision over inapt — constitutionally invalid – policy-making by the Court hard-core conservatives. Both were dead wrong.
Here’s how George Mason University Scalia School of Law professor Ilya Somin – an “originalist” – put it:
“In 2016, there was litigation over claims brought by Trump supporters to the effect that Sen. Ted Cruz (R-Texas), his chief rival for the GOP presidential nomination, was not a natural born citizen. State courts in Pennsylvania and New Jersey ruled that Cruz was eligible, rejecting the claims against him…no one doubted that they had the authority to adjudicate the issue.”
In 1995, a 5-4 Court decision said that states may NOT impose additional eligibility requirements — like term limits — on candidates for federal office. This was a case cited by the Court’s 9-0 majority. But in the Colorado Supreme Court case, the state was NOT imposing any kind of additional eligibility requirement. It was applying Section 3 of the 14th Amendment’s disqualifier for insurrection.
And, there WAS an insurrection. No doubt about that:
https://www.usatoday.com/picture-gallery/news/nation/2021/01/07/front-pages-capture-chaos-riots-us-capitol/6577931002/
So, why did the three so-called “liberals” on the Court agree to the lie that Colorado was in error, BEFORE they basically rejected much of what they had agreed to?
Perhaps a convoluted piece by Samuel Moyn in the NY Times on 12-22-23 helps to explain it.
Moyn wrote – obtusely – that “many Americans still believe Mr. Trump did nothing wrong…if the Supreme Court were to exclude Mr. Trump from the ballot, it would have disastrous consequences…rejecting Mr. Trump’s candidacy could well invite a repeat of the kind of violence that led to the prohibition on insurrectionists in public life in the first place…the worst outcome of all would be for the Supreme Court to split on ideological lines, as it did in Bush v. Gore, hardly its finest hour.”
Bush v. Gore was hardly the Court’s finest hour. In essence, the Court STOLE the election from the voters. Indeed, as one attorney remarked at the time, “This is a question about who won Florida. Elections are always decided by the state Supreme Court. Why would the U.S. Supreme Court get involved? They don’t have jurisdiction.”
Why indeed? Interestingly, John Roberts, Brett Kavanaugh, and Amy Coney Barrett were all part of George W. Bush’s legal team in 2000.
So, did the “liberals” on the Court agree to shred Section 3 of the 14th Amendment because of fear? Because it was the path of least resistance? Because they succumbed to the pleas of “Let the voters decide?” Because John Roberts persuaded them that it was “important” for the Court to show unanimity in disallowing Colorado’s disqualification of Trump in order to “save” the country?
You know, a riff on the Vietnam-era refrain: ”We have to shred the Constitution in order to save it.”
In an amicus brief to the Court, a group of Yale historians noted that on the day Missouri Republican John B. Henderson’s voted in FAVOR of the 14th Amendment he stated: “
“The language of this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come.”
The ENTIRE Supreme Court should have heeded that warning.
Democracy, I agree with you. But it occurred to me yesterday—after reading a comment—that the Supreme Court very often uses a ruling from one state or region to set a national standard. The Court could have decided that Colorado was right, and that the oath-breaking insurrectionist’s name could not appear on any state ballot, in accord with Section 3, 14th amendment.
Exactly, and it’s what they DID do, wrongly.
This is what Lutting and Tribe talked about in their piece. They wrote:
“All nine justices were persuaded by the appeal of a fatuous argument featured prominently in the briefs supporting the former president—the argument that no single state should be able to disqualify a candidate for the presidency.”
“But that argument, despite its prominence in many public discussions of this decision, was always utterly empty of constitutional substance. Anyone who knows anything about the United States Constitution and the way the judicial system operates—and that surely includes all nine Supreme Court justices—has to know that a single state could never have rendered a disqualification ruling that would bind the other 49 states, an admittedly untenable result.”
“If the Court UPHOLDS the state’s disqualification decision, then it will be binding nationwide, in the manner and to the extent decided by the Court. If the state’s disqualification is held to be invalid, then it will be invalid in that state, as well as nationwide. It’s as simple as that.”
[emphasis in capitals mine]
So SCOTUS dodged its responsibility, which was to apply Section 3 of the 14th A. They left it to Congress, which is too divided to do anything.
It was the responsibility of SCOTUS to read the plain language and apply it nationwide, not just ask whether CO could disqualify an oath-breaking insurrectionist all by itself, setting off a bidding war among the states to disqualify the candidate of the other party.
That’s true, democracy — it isn’t really one state that would decide for the nation, but rather the Supreme Court’s review of one state’s decision. Although that just creates another problem, i.e. putting the Supreme Court in the position of effectively deciding who will be President before an election even happens. I’m not saying that should impact the constitutional analysis, but it’s inherently anti-democratic.
Problem is, FLERP, that SCOTUS ignored the constitution by ducking the question and kicking the can to Congress. As matters now stand, that provision no longer applies to federal officials. This was surely not what the authors of the 14th A intended.
Flerp and Diane . . . AND, the shift to Congress put the matter squarely back into the domain of the political rather than of principled judging and decision-making.
I really wonder if SCOTUS understands just what they are doing. It’s either “supreme” ignorance or willfulness to destroy a Constitutional Democracy, step by step. No other choice. CBK
Flerp: Standing on principle is not “inherently anti-democratic.” On the contrary. As with the DOJ’s rule: ”. . . without fear or favor.”
Viewing such decisions as “inherently anti-democratic” is to understand the situation ONLY through a political lens . . . plays right into the fascist hands . . . it’s a prescription for chaos. CBK
I meant that having an unelected group of nine people whose decisions are unreviewable determine who wins the presidency is anti-democratic.
Hi Flerp: You wrote: ”I meant that having an unelected group of nine people whose decisions are unreviewable determine who wins the presidency is anti-democratic.”
I don’t think so. Here’s why: First, decisions ARE reviewable according to the same standards and protocols (and rules of interpretation) that got them there in the first place.
Also, second, that they’re not elected only takes them away from the political domain; and leaves in place their (presumably intelligent) interpretive relationship with the principles embedded in the Constitution, in argumentation and briefs, and in their strong connection to legal precedent. (Totally different from the other two branches of government . . . on purpose.)
Third, those principles are not in competition with the political domain, but rather are foundational to that domain. And adherence to the foundations are what makes the Court’s judgments “supreme.” Which brings us to:
Fourth, it is what makes a Constitutional Democracy NOT a theocracy, even if one might think the order of that democracy is deftly related to one’s religious orientation, or biblical meaning, or whatever, and whether one likes that relatedness or not. The power in a democracy is not formally ordered around a religious order, a king, or any kind of authoritarian. It’s circular in that regard, the power goes back around to The People.
These above are why standing on principle, in this case, principles embedded in the Constitution and the Laws, (blindfolded, such as they are) can favor one (unseen) political party or person in one instance, and another party or person in another instance.
Think of a football referee making what everyone recognized was a good call. One team loved that call while the other hated it. But the referee made the call according to the already accepted rules of the game as applied in this particular situation–the principles and not the teams (or parties). This movement of power is what it means NOT to be corrupt (adhering to principles while blindfolded to which team benefits). And this relationship operates in EVERY game that is not corrupted in some way.
In this way, the court is not “determining” who wins the election any more than the referee is determining who “gets the call.” (“Without fear or favor.”) If in this case Trump cannot run for president, IT’S ON TRUMP for initiating an insurrection and not on the Courts for adhering to the principles embedded in the Constitution and in the laws, and also not in favor of one party or person over another in some arbitrary or partisan way.
But for the Courts (some judges ARE elected anyway), once that unelected non-political situation goes away, then the person who hates the referee’s “call” has no recourse but to “go tribal,” as the Trumpists, fascists, the Putinesques among us are up to as we speak–trashing democratic principles and going tribal.
On that ordering of power, however (principle as foundational to and as “supreme” over the political), “the people” in a democracy have the advantage, regardless of what family, tribe, corporation, sexual orientation, etc., etc., anyone belongs to, e.g., due process–the courts speak for the people as we are related to the principles. And that’s also why, on principle, no one is above the law in a democracy, and especially not the president.
This is also (in my estimation) what Comey either forgot or didn’t know about in the first place with his Hilary debacle; . . .
And it’s why the whole idea is not undemocratic, but rather is quintessentially DEMOCRATIC. It serves The People. CBK
To be clear, I meant that the Supreme Court’s decisions are not reviewable by any court. They can be overturned by Congress to the extent they don’t involve constitutional issues that require amendment, but that is quite difficult and rare, especially today. And I don’t think any reasonable person would deny that having the Supreme Court decide an election before any ballots are cast is not “democratic.” Recall Bush v. Gore.
Flerp: You write: ”And I don’t think any reasonable person would deny that having the Supreme Court decide an election before any ballots are cast is not ‘democratic.’”
The problem is with the premise of your point above: that the Supreme Court, by disallowing Trump’s participation, is “deciding an election before any ballots are cast.” That doesn’t make any reasonable sense.
First, someone else would be the GOP candidate.
But also, though in this case disallowance of Trump to run would be a result, the decision is not about who is on the ballot. It’s about anyone fulfilling or not fulfilling the rules for being on the ballot before anyone runs or votes.
No one made the rule up because it was Trump. Those rules are there for everyone/anyone who wants to run, just like age or citizenship. On what premise does the Court throw out the rules? Because it’s Trump, Biden, or any particular person who somehow “deserves” special treatment? And would THAT be democratic? Again, on the contrary.
Further, the decision to disallow also may serve one side or the other (like the referee’s call served one side but not the other (where, in fact, the truth of the call serves both sides, though most don’t understand it that way); but the decision is directly related to predetermined requirements/ qualifications of the amendment and whether this case applies (which it does), regardless of who it is or who might be on the ballot otherwise, or win or not. In fact it would be undemocratic to exclude Trump from that decision.
And that’s why all of these legal scholars think what is happening is so dangerous TO DEMOCRACY. Living in a democracy is to abide by the rule of law. It’s about THAT and not about whether Trump or any particular person is allowed to be on the ballot. Do you want to exempt any person and so award them for, in this case, being the guy responsible for the insurrection? In either case, however, it doesn’t matter WHO it is because the law applies to everyone in a democracy.
No one would even raise this question were it not for Trump’s own disqualifying actions.<–there is your cause-and-effect argument. Trump knocked himself off the ballot. Whatever results flow from that can be related right back to Trump’s own actions, and not to the law, and certainly not to the Justices who are sworn to uphold it . . . would they have done so.
Confusing remote results with direct decisions about predetermined rules again, that are meant to apply to anyone, would be the same as saying that the referee, in making that call, caused the game to be won or lost because one team won by one point, and the other lost. The decision had to do with the call that would have applied to anyone and any team and, though there is a relationship, of course, (if only this, then that aka: wishful delusional thinking), the principles that hold a democracy together cannot do so when unwarranted exceptions are made.
Just the opposite to your argument: It’s the unwarranted exceptions to the rule that are undemocratic.
Here’s how that logic can go: A friend of mine got a ride to work with a coworker because her car was in the shop. But, before the coworker got to my friend’s house, she had an accident four blocks from the friend’s house. So the coworker blamed my friend for the accident. Good luck with that . . . doesn’t work . . . not in a a reasonable, democratic world. CBK
Also missing from this debate is the very important fact that the Constitution does NOT allow a state to remove a candidate on the ballot FOR POLITICAL REASONS. A state cannot remove a candidate IN RETALIATION for another state removing an ineligible candidate. A state cannot remove a candidate BECAUSE IT HAS CORRUPT REPUBLICAN JUDGES WHO SPURN THE LAW.
But a state CAN remove a candidate who does not meet the Constitutional requirements to be on the ballot. States can do so and states have done so many times and until the right wing wanted to protect a neo-fascist criminal candidate, it was so obvious that states had this right that no one even challenged it.
The Colorado court did not remove Trump on a whim. They did not remove Trump for political reasons. They removed Trump because – AFTER A TRIAL AND A REVIEW OF CREDIBLE EVIDENCE – Trump was judged to be an insurrectionist. And THAT is why he was removed.
The Supreme Court COULD have taken up this case as an appeal of the Colorado court’s legal decision that Trump was an insurrectionist. Maybe the Supreme Court would decide that the credible evidence doesn’t prove that Trump was in insurrectionist. Just like Obama would rightly have appealed if a corrupt and unethical judge in Alabama had removed Obama from the ballot by ruling that there was credible evidence that proved that Obama was born in Africa and his birth certificate was a fraud. Unfortunately, the credible evidence that Trump is an insurrectionist is very hard to dispute. The spurious “rumors” that Obama was not born in Africa is very easy to dispute. (Unless Republican Judge Scott McAfee is in charge of the hearing, since he believes rumors are a fine substitution for real evidence when it comes to punishing Democrats.)
I imagine that if 2008 America was as infected by same right wing propaganda as 2024 America is, many pundits and frightened Supreme Court justices would argue that no state should be allowed to remove anyone from the presidential ballot – including Putin if he decided to run – because if a state was allowed to remove Putin from the ballot for being a non-citizen, what would stop other states from removing Obama from the ballot for not being an America citizen?
And that argument only seems reasonable if you embrace the absolute lie that states who remove candidates are allowed to do so ON A WHIM, and not after a process where both sides are free to offer credible evidence as to why the candidate is or is not eligible.
States are allowed to remove 22 year olds from Senate ballots, and if another state’s court removes a 40 year old from the ballot “in retaliation”, it would be absurd for someone to say “I told you so, this is proof that the first state should have been forced to keep the 22 year old on the ballot, I told you that that this would open the door for other states to remove 40 year olds”. We live in Orwellian times where Republicans acting as criminals is presented as a NORMAL reaction to Democrats upholding the law, and presented as a VALID REASON why Democrats should not uphold the law!
It is Orwellian to BLAME Democrats who uphold the law for why Republicans act as criminals and spurn the law!
But that is basically what so many people do!
Please note that no one ever said that Judge McAfee should act ethically because his spurning ethical behavior would make all Democrat judges spurn ethical behavior to destroy their political enemies. We actually accept that Democrats aren’t that corrupt, but we also somehow also scapegoat Democrats for Republicans’ corruption! If Dems uphold the law, it is their fault that Republicans spurn the law. And if Dems don’t uphold the law, well then we won’t talk about how Republicans spurn the law and all will be well.
I heard this same type of fear-mongering during the first impeachment of Trump. Constant warning that Congress must let Trump break the law with no accountability, because if they didn’t, then when a Democrat is president, a Republican congress will invent charges to impeach him on! As if the Republicans would not do that anyway!
We have to start calling their bluff, because empowering criminals based on fear that the criminals will retaliate on innocent people is the hallmark of a society that is breaking down, and democracy is near death.
And in fact, the Republicans are trying to impeach Biden right now but they DON’T HAVE CREDIBLE EVIDENCE. Therefore, we have to do the right thing instead of giving in to absurd fear-mongering.
I have no doubt that the Republican judiciary is corrupt and unethical enough to retaliate on an innocent person if one of their favorite Republican criminals is not allowed top commit crimes with impunity. But if that is the reality, then we have a much bigger problem and NOT holding Republicans to account is not going to solve that bigger problem. It is going to make it worse,.
In my opinion, we’ve already made this problem worse by fearing how the corrupt and unethical Republican judiciary will retaliate, and thus legitimizing the right wing propaganda that there is no truth, no right and wrong, just partisan actions.
What’s Judge McAfee have to do with this, and how did he “spurn ethical behavior”?
CBK says:
“The problem is with the premise of your point above: that the Supreme Court, by disallowing Trump’s participation, is “deciding an election before any ballots are cast.” That doesn’t make any reasonable sense.
First, someone else would be the GOP candidate.
But also, though in this case disallowance of Trump to run would be a result, the decision is not about who is on the ballot. It’s about anyone fulfilling or not fulfilling the rules for being on the ballot before anyone runs or votes.”
CBK, thank you very much for making these very important points. Making sure the premise is correct is absolutely imperative, as once the correct premise is stated, your logical arguments can’t be contradicted (in my opinion).
Flerp says that “it’s inherently anti-democratic” if the Supreme Court had UPHELD the Colorado Supremes’ decision to remove Trump from the ballot.
I disagree. Strongly.
What’s “anti-democratic” is for the constitutionally-created Supreme Court to abdicate its responsibility to enforce the clear and convincing words of the Constitution (Amendment 14, Section 3) to keep an insurrectionist OFF the ballot.
Make no mistake. There WAS an insurrection, and as we keep finding out, it was part of a much larger, multi-state, coordinated effort to overthrow the 2020 presidential election results.
The man who incited this anti-democratic insurrection is prohibited by the Constitution from being on any state ballot:
https://www.usatoday.com/picture-gallery/news/nation/2021/01/07/front-pages-capture-chaos-riots-us-capitol/6577931002/
The five male conservatives on the Court could care less. I’d guess that there were/are second and third and fourth and fifth and sixth thoughts from the Court “liberals” over what they have done…which was the shred the Constitution in order to “save” democracy in America.
Hopefully – and I think they will – the voters in the US. will do the necessary work.
Diane: In my view, in the Colorado case, “Shred the Constitution” is not hyperbole. We can put that in the “win” column for Putin and the anti-democratic Trumpist/fascists.
Also, Flerp’s argument (if I have it right) about the Court not being elected as setting the conditions for their decision to be non-democratic, though it rests on bad premises, in this case carries with with it a great irony . . . because, in failing to interpret and apply the Amendment (which is as clear as it can get, and clearly breached in Trump’s particular case) the Court has acted in a way that screams of political influence and decision-making, as if they actually had been elected, and as if their voting constituency were anti-democratic. History does love irony.
As a non-political non-elected body, and though (to Flerp:) appointed by elected politicians who write the laws, the Court is supposed to interpret the law regardless of political fallout in most if not all cases.
I am not a lawyer; but this is how I have always understood the point about Lady Justice being blindfolded. Anyone: please correct me if I am mistaken here, or provide nuance if you have it. CBK
democracy, when I say that it’s inherently anti-democratic for the Supreme Court to disqualify a candidate with very substantial popular support, I mean that quite literally, in that an unelected and unaccountable court would be taking matters out of the hands of the voting populace. I get that there’s an argument that Trump himself is a threat to democracy, so you end up with a situation where ironically you need an anti-democratic body to save democracy from the voters. But at the first stage, the Supreme Court is inherently anti-democratic most if not all of the time.
FLERP: Sigh . . . . CBK
Sorry!
FLERP: ”Sorry”? For what? Failing to understand how democracy really works?
Perhaps I should have related that judges are legal specialists with years of training in the courts and in conversations with other specialists. They are chosen, again, by an elected group of people with constituencies, but presumably for their legal expertise, experience with the law and, hopefully, for their intelligence and seriousness about their oaths.
If judges had to campaign and cow-tow to their voters (as you think is the way things should be) . . . voters who are of every stripe but legal experts? not so much . . . instead of to the law and their oath, democracy would go away as quick as you can say “Welcome!” to Mr. Manafort. CBK
That wasn’t what I had in mind, but sure, why not.
FLERP: Well, have a nice day. I have to go wash my unruly hair. CBK
Enjoy! I’m taking a day off, I was up almost all night revising a brief.
Also, it’s a good thing Amy Coney Barrett only concurred in the judgment, because otherwise you wouldn’t have been able to use that sweet zinger about “five male conservatives.”
I hate to keep saying the same thing, but remember, people, if your concern is that the court ignored the Constitution by holding that Section 3 is not self-executing and that Trump must remain on the ballot, your problem is not with “five male conservatives” but with the ENTIRE COURT. I know we love to say things like “male conservatives are bad” but I’m sorry, it is what it is.
flerp! says:
“when I say that it’s inherently anti-democratic for the Supreme Court to disqualify a candidate with very substantial popular support, I mean that quite literally, in that an unelected and unaccountable court would be taking matters out of the hands of the voting populace.”
If this is the issue, then why are there even Constitutional citizenship requirements and age requirements to run for president??
This argument would apply to any “popular” 25 year old. Or a “popular” Russian authoritarian.
CBK explained multiple times that UPHOLDING CONSTITUTIONAL GUIDELINES SETTING OUT WHO IS ELIGIBLE TO RUN FOR PRESIDENT is not the same as “taking matters out of the hands of the voting populace”!
I feel as if we have entered Orwellian territory here. There is how fascism starts. Those who can get you to believe absurdities can get you to commit atrocities. UPHOLDING the Constitution is now anti-democratic!
Obama should run for president again, because if the Supreme Court or anyone else tried to cite the 22nd amendment, then flerp!’s argument would apply — it would be “inherently anti-democratic for the Supreme Court to disqualify Obama just because of the 22nd Amendment. Disqualifying Obama simply because the 22nd Amendment makes him ineligible would be, according to flerp!’s rationale, an unelected and unaccountable court taking matters out of the hands of the voting populace.
Upholding the Constitution is not “anti-Democratic”. It is absolutely NECESSARY in order to have a democracy!
I agree with you, it please don’t direct your comment to one reader.
Ok, apologies. I didn’t intend that to be addressed to one reader, but I see how it would seem that way, so I am sorry.
I would like to add that what is truly anti-Democratic is the Supreme Court saying that one candidate does not have to abide by the Constitution because of their popularity. So it’s weird to read someone arguing that if the Supreme Court does NOT spurn the Constitution and rule that Trump does not have to follow the Constitution, it is being “anti-democratic”.
Which is more anti-Democratic? The Supreme Court saying that one candidate is not bound by the Constitution? Or the Supreme Court UPHOLDING the Constitution for EVERYONE?
One reason I quote comments is because I have been accused of misrepresenting what other people say and that is the last thing I want to do, so I believe it is safer to let the quote speak for itself:
“I get that there’s an argument that Trump himself is a threat to
democracy, so you end up with a situation where ironically you need an
anti-democratic body to save democracy from the voters.”
That’s a sneaky way to mischaracterize all our arguments into an entirely false narrative where we are advocating for the Supreme Court to spurn the law and exclude Trump because we believe Trump is dangerous.
But this is not a vendetta against Trump. Multiple times CBK and democracy have explained that this is about upholding the Constitution, and the view of Tribe and Luttig and you and CBK and democracy is still being mischaracterized as if it was a personal vendetta to have the Supreme Court go after Trump because you believe he is dangerous.
I bring up Orwell because this is exactly what he warned about. Up is down. Truth is a lie. Upholding the Constitution to treat each candidate the same is anti-democratic because it happens to affect a right wing Republican candidate. Giving special treatment to a right wing Republican to be above the law is the essence of democracy!
Like Pug Henry said in the Winds of War, “Are people really buying that?” Unfortunately, they are.
Hello NYC Public School Parent: You write: “. . . upholding the Constitution, and the view of Tribe and Luttig and you and CBK and democracy is still being mischaracterized as if it was a personal vendetta to have the Supreme Court go after Trump because you believe he is dangerous.“
That gross misunderstanding is what I was trying to get at by using the example of a referee making a call according to the rules that are made for everyone. If a player is offsides, they are offsides (and there’s a truth to the call): There are many who do not understand this point and think that, because a decision favors a particular person, or political party, or group, or team, then it MUST BE that decision is biased on that side.
But the point is that, no matter what the call or decision, it’s going to be liked by one side and not liked by another; so it doesn’t even matter if there IS a personal vendetta and it is served by the decision. The point is that the principle is served by the arbiter (or not), regardless of which side is happy about it.
The obscurity of truth and principles, then, serves the fascist by enabling everything to be reduced down to a fight (and ultimately to violence) between WHO or which group is served or not by the arbiter. Without the arbiters of principle, the rule of law, game rules, etc., and some regard for the actual truth of the matter (the referee’s call or the court’s decision about breach of amendments) then there is no legitimate arbiter–it comes down to who has the brute power (to generate fear), again, the stuff of fascism.
BTW, this point is made also in the Federalist Papers (I think it’s either 8 or 10?) but also in Aristotle’s Nicomachean Ethics.
I detest Trump and think he should already be in jail. But it’s not about my detestation of him. It’s about whether or not the arbiters adhered to the principle of the matter (which they did not), or just did me and people who share my view a favor. Welcome to the spirit, if not the formal fact, of fascism. CBK
CBK,
I thought you made all of that so brilliantly clear in your comments! Thank you!
Thank you so much for these posts. You express so much of what I believe – it’s hard to understand why even many Democrats bend over backward to justify actions that shred the Constitution.
I absolutely believe the three liberals acted out of fear. They decided that standing up for Constitutional principles would seem too partisan. Unity uber alles.
To democracy: I misdirected my note above to Diane about “shred the Constitution”. . . I didn’t realize you had written the response. CBK
A final thought here.
The Supreme Court is “undemocratic” in that its members are not elected.
Yet, it is part of a larger democratic system crafted by the Founders in the Constitution. Its members (and all federal court judges) are appointed by the president – who is elected – and subject to confirmation by a majority of the Senate (also elected). It has the power of judicial review, which in simplified terms is “the power of an independent judiciary, or courts of law, to determine whether the acts of other components of the government are in accordance with the constitution.”
In the case of the Colorado Supreme Court’s decision to declare Trump an insurrectionist and remove him from the ballot per the direct wording of Section 3 of the 14th Amendment, the US Supreme Court abdicated its responsibility. It turned its collective back on the Constitution, led by the core conservatives on the Court.
What I find MOST undemocratic about THIS Court is that fully one-third of it — in my view — is illegitimate. These members — Gorsuch, Kavanaugh and Barrett — were appointed by a president* who knowingly and willingly took LOTS of help from Russian intelligence agencies to win* the 2016 presidential election.
David Cole put it like this in describing the Mueller Report in the New York Review of Books:
“Robert Mueller’s report lays out in meticulous detail both a blatantly illegal effort by Russia to throw the 2016 presidential election to Donald Trump and repeated efforts by Trump to end, limit, or impede Mueller’s investigation of Russian interference. Trump’s efforts included firing or attempting to fire those overseeing the investigation, directing subordinates to lie on his behalf, cajoling witnesses not to cooperate, and doctoring a public statement about a Trump Tower meeting between his son and closest advisers and a Russian lawyer offering compromising information on Hillary Clinton.”
“The Mueller report describes extensive contacts between the Trump campaign and the Russians, many of which Trump campaign officials lied about. And it finds substantial evidence both ‘that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts.’… Russian intelligence agency hackers targeted Hillary Clinton’s home office within five hours of Trump’s public request in July 2016 that the Russians find her deleted e-mails. And WikiLeaks, which was in close touch with Trump advisers, began releasing its trove of e-mails stolen by the Russians from Clinton campaign chairman John Podesta one hour after the Access Hollywood tape in which Trump bragged about assaulting women was made public in October 2016.”
“Trump has repeatedly dismissed the investigation as a ‘witch hunt.’ But Mueller found “sweeping and systematic” intrusions by Russia in the presidential campaign, all aimed at supporting Trump’s election. He and his team indicted twenty-five Russians and secured the convictions or guilty pleas of several Trump campaign officials for lying in connection with the investigation, including campaign chairman Paul Manafort, top deputy Rick Gates, campaign advisers Michael Flynn and George Papadopoulos, and Trump’s personal lawyer Michael Cohen. Trump’s longtime friend Roger Stone faces multiple criminal charges arising out of his attempts to conceal his contacts with WikiLeaks. If this was a witch hunt, it found a lot of witches.”
“The report establishes beyond doubt that a foreign rival engaged in a systematic effort to subvert our democracy…the Russians referred to their actions as ‘information warfare.’ One would think that any American president, regardless of ideology, would support a full-scale investigation to understand the extent of such interference and to help ward off future threats to our national sovereignty and security. Instead, Mueller’s report shows that Trump’s concern was not for American democracy, but for saving his own skin.”
“The report rests its determinations of credibility on multiple named sources and thoroughly explains its reasoning. Its objective ‘just the facts’ approach only underscores its veracity…the results are devastating for Trump…Trump directed White House Counsel Don McGahn to fire the special counsel…after this was reported by The New York Times, Trump instructed McGahn to lie about it. Trump lambasted Attorney General Sessions for recusing himself from overseeing the investigation…Trump repeatedly pressured Sessions to ‘unrecuse’ himself.…He interceded to delete from a statement about his son’s meeting with a Russian lawyer any reference to the lawyer’s offer to provide compromising information on Hillary Clinton. He encouraged important witnesses, including Cohen and Manafort, not to cooperate with the investigation.”
“No reasonable reader can come away from the report with anything but the conclusion that [Trump]repeatedly sought to obstruct an investigation into one of the most significant breaches of our sovereignty in generations, in order to avoid disclosure of embarrassing and illegal conduct by himself and his associates.”
https://www.nybooks.com/articles/2019/05/23/robert-mueller-report-trump-indictment/
Jane Mayer described the 2016 election in the New Yorker like this:
“Kathleen Hall Jamieson, a professor at the University of Pennsylvania, since 1993, has directed the Annenberg Public Policy Center and in 2003 she co-founded FactCheck…She is widely respected by political experts in both parties…her conclusion is that it is not just plausible that Russia changed the outcome of the 2016 election—it is ‘likely that it did.’…Russian trolls created social-media posts clearly aimed at winning support for Trump from churchgoers and military families…according to exit polls, Trump outperformed Clinton by twenty-six points among veterans; he also did better among evangelicals than both of the previous Republican nominees, Mitt Romney and John McCain…During the weeks that the debates took place, the moderators and the media became consumed by an anti-Clinton narrative driven by Russian hackers.”
https://www.newyorker.com/magazine/2018/10/01/how-russia-helped-to-swing-the-election-for-trump?mbid=social_twitter
Volume V of the Senate Intelligence Committee Report on the 2016 election stated that,
“the Russian government engaged in an aggressive, multifaceted effort to influence, or attempt to influence, the outcome of the 2016 presidential election…Manafort’s presence on the Campaign and proximity to Trump created opportunities for Russian intelligence services to exert influence over, and acquire confidential information on, the Trump Campaign. Taken as a whole, Manafort’s highlevel access and willingness to share information with individuals closely affiliated with the Russian intelligence services, particularly Kilimnik and associates of Oleg Deripaska, represented a grave counterintelligence threat…”
“Russian President Vladimir Putin ordered the Russian effort to hack computer networks and accounts affiliated with the Democratic Party and leak information damaging to Hillary Clinton and her campaign for president. Moscow’s intent was to harm the Clinton Campaign, tarnish an expected Clinton presidential administration, help the Trump Campaign after Trump became the presumptive Republican nominee, and undermine the U.S. democratic process…While the GRU and WikiLeaks were releasing hacked documents, the Trump Campaign sought to maximize the impact of those leaks to aid Trump’s electoral prospects. Staff on the Trump Campaign sought advance notice about WikiLeaks releases, created messaging strategies to promote and share the materials in anticipation of and following their release, and encouraged further leaks. The Trump Campaign publicly undermined the attribution of the hack-and-leak campaign to Russia and was indifferent to whether it and WikiLeaks were furthering a Russian election interference effort.”
https://www.intelligence.senate.gov/sites/default/files/documents/report_volume5.pdf
The New York Times reported the Volume V release like this:
“The report by the Senate Intelligence Committee, totaling nearly 1,000 pages provided a bipartisan Senate imprimatur for an extraordinary set of facts: The Russian government disrupted an American election to help Mr. Trump become president, Russian intelligence services viewed members of the Trump campaign as easily manipulated, and some of Trump’s advisers were eager for the help from an American adversary…the report showed extensive evidence of contacts between Trump campaign advisers and people tied to the Kremlin — including a longstanding associate of the onetime Trump campaign chairman Paul Manafort, Konstantin V. Kilimnik, whom the report identified as a ‘Russian intelligence officer.’…Mr. Manafort’s willingness to share information with Mr. Kilimnik and others affiliated with the Russian intelligence services ‘represented a grave counterintelligence threat,’ the report said…The Senate investigation found that two other Russians who met at Trump Tower in 2016 with senior members of the Trump campaign — including Mr. Manafort; Jared Kushner, the president’s son-in-law; and Donald Trump Jr., Trump’s eldest son — had ‘significant connections to Russian government, including the Russian intelligence services.’…”
https://www.nytimes.com/2020/08/18/us/politics/senate-intelligence-russian-interference-report.html
The BBC reported this in the summer of 2018 after Trump met with Putin in Helsinki:
“After face-to-face talks with Russian President Vladimir Putin, Mr Trump contradicted US intelligence agencies and said there had been no reason for Russia to meddle in the vote. Trump was asked if he believed his own intelligence agencies or the Russian president when it came to the allegations of meddling in the elections.
‘President Putin says it’s not Russia. I don’t see any reason why it would be,’ he replied.
US intelligence agencies concluded in 2016 that Russia was behind an effort to tip the scale of the US election against Hillary Clinton, with a state-authorised campaign of cyber attacks and fake news stories planted on social media.”
Trump is not just an insurrectionist. He was – and is – a clear and present counterintelligence danger to the security of the United States.
The members of the Court have to know this. Rather than act on what they know to be true, they ducked their heads and pretended otherwise.