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They are probably going to rule in Trump's favor, but I'll be curious to see their reasoning. There are reasons beyond the current situation that it might be bad to remove him from the ballot - for example observe the threats in other states to remove Biden from the ballot. While that is clearly retaliatory bullshit, how do we prevent, for example, Texas deciding that whatever Biden is doing or not doing on the border amounts to insurrection and so he's off the ballot? And Biden could sue to get on the ballot, but that could be costly and if there isn't a stay by the court it could take until after the election to prove he should've been on it. Without a way to forestall this, we run the risk of a victory over Trump today creating havoc in the future.
That being said, the court is packed with originalists, and if we just go by the letter of the law and precedent and figure it is for the legislative branch to fix the problems, then it's really hard to argue that a state is compelled to allow a candidate on the ballot that they deem has committed insurrection. Every hole you might poke in it has already been answered definitively. Is the law meant to apply to the President? Absolutely 100% as you can see from the record of congressional debate over it. Must the person be found guilty of a specific crime? No, that has never been the case and it was so applied at the time. Gorsuch himself ruled that a state may exclude from the ballot a candidate who is ineligible to serve.
Every single question of law seems to have been answered definitively. Plus, Trump is an albatross. He is destroying the Republican party from within and the adults in the room know it but are powerless (gutless, I think) to stop him. Behind the scenes they might well be praying to the Supreme Court to offer them a solution.
I believe it could go either way, but I'm going to assume they will restore Trump to the ballot because of politics and perhaps looking at the future it is the least-disruptive change. As much a I hate Trump and would love to guarantee he cannot be President, I'm not sure the future is best served by keeping him off.
What happens if states collude to deny one (or any) candidate 270 electoral votes? Well, then each state gets a single vote which will (as things currently stand) go to the Republicans every single time. There are states so gerrymandered that they have Democrat-majority populations but Republican-controlled legislatures, so this doesn't seem to me to be an unrealistic possibility. This would obviously be terrible if the Supreme Court rules against Trump without also somehow preventing this sort of thing.
Caveat: I'm not a lawyer or expert on any of this. My concerns about possible results of keeping him off the ballot might be completely unfounded.
I think Trump's entire argument is going to be a due process one - sure, 14A Section 3 applies to the President, sure it doesn't require being convicted of a crime as such and of course a state may exclude from the ballot a candidate who is ineligible to serve. But who makes that determination, and under what standard? Just realize however you answer that question, the GOP will use that answer to it's fullest extent against any Dem they can.
In the cases where it has been applied historically we were talking about public officials of an organization engaged in open rebellion against the US. There was no question of fact as to whether or not such a person was engaging in insurrection, as their public titles were leadership roles in a rebellion.
With Trump that's...murkier. It's not like he personally led an attack on the Capitol, he was too much of a pussy to do that. His speech at the initial rally is almost certainly constitutionally protected political speech, incitement is a very high bar to meet in the US. It's intentionally murkier so as to create levels of indirection and questions of fact to make it harder to pin him down legally in case it failed.
Or else they'll argue that a primary election is a private organization borrowing public infrastructure to decide who they want to back and thus the party is the only figure that should have any say who appears on their ballot. They could also choose to caucus instead, if they wanted. This would only apply for the primary ballot and not the general ballot, though.
Personally, I'm hoping for Trump to be barred from the general ballot, the GOP to throw 2nd place on it instead, and some Dems out there to be smart enough to pretend at being a fascist and try to convince GOP voters to write in Trump because "Those DeMoNRaT Leebruls Cant Stop the Trump Train!" which would do a fantastic job at splitting the GOP vote and guaranteeing a Dem win.
I will reluctantly agree with this. While I think it's clear the attack on the Capital was an insurrection and Trump led it (he had several opportunities to talk them down or otherwise stop things, and he refused, which speaks to intent), it is indeed quite a bit murkier than a civil war.
Gorsuch would have to reverse a ruling he has already made to make this call. I think this is unlikely reasoning.
Yes, but I'm also looking down the road. Trump is a present danger, but a bad ruling would be a perpetual problem. If they rule against Trump but also don't screw up the future, that would be clearly ideal.
Not doing enough (really anything) to stop it once in motion isn't the same thing as leading it. That's kind of part of what I mean - you can readily show that he gave a (definitely 1A protected) speech that got them riled up, you can readily show that he didn't do enough to try to stop it and that there was a lot more he could have done, but that's not the same as leading it himself - protected speech and sitting on your hands is almost certainly not what is meant in 14A. Again, he was too much of a pussy to openly do that. It's possible (frankly very likely) he was leading it from the back - giving marching orders to people directly in charge of it through one or more layers of indirection, but the argument is that you'd have to peel away those layers of indirection to be sure.
Ideally SCOTUS provides a firm answer to the due process argument Trump is likely to make (probably one that leaves him eligible in the primary), and then we push things along fast enough that he's ineligible under whatever standard SCOTUS sets before election day.
I don't think you have to be a leader, I think you just have to support the insurrection. I don't know if you can call doing absolutely nothing to stop it aid, but I think you can argue that many of his comments have been in support of them. But that appears to be a semantic point, anyway.
If the process they are looking for is a formal declaration by Congress that Jan 6 was an act of insurrection, I don't think there is a path to that.
sigh, you're right. It's unfortunate and also maddening that Trump is so obviously guilty, but a favorable ruling in that regard without proper foresight would just mean that the Republicans would immediately and swiftly retaliate by removing Biden from their ballots because the definition of what constitutes an insurrection is unclear and due process is not really involved with the language of the amendment, so they could make up whatever lame excuse they wanted and kill the democratic process before Trump ever gets a chance to.
I am not a lawyer.
He's absolutely responsible for the jan 6 2021 insurrection. But he's not actually legally guilty of it yet, no?
I suspect that they might rule that only someone convicted of insurrection can be removed from the ballot; regardless of the actual letter of the law nor requiring that.
Keep in mind that the SCOTUS majority have spent decades advocating the doctrine of "originalism".
Originalists think that the 14th means whatever the Reconstructionists who wrote it thought it meant. And it's abundantly clear that Reconstructionists did not intend to prosecute former Confederates but still wanted to keep them out of office.
If the SCOTUS majority ignores what Reconstructionists thought in order to help Trump, it would be like the Pope ignoring Catholic doctrine in order to help Trump. They can do it, but they know their legal theory will never be taken seriously again. And that's a big deal, since Justices are ultimately remembered for their legal theories.
True, but politics tends to put an asterisk by justices' rulings. In Bush v. Gore, the Ds were arguing states rights, while the Rs were arguing federal supremacy. Completely against their usual positions, but everyone knows why.
States rights is associated with Republican elected politicians, but not so much the SCOTUS majority. There are many examples of Roberts et al ruling against states rights, in fact they recently sided against Texas in the state v federal border dispute. And they ruled against the independent state legislature theory last year.
Originalism, on the other hand, is near and dear to their hearts. They have basically never embraced another doctrine.
Fair point, but if the vote goes 6-3 and the Rs ignore originalism entirely in their opinion, I don't think anyone would expect their adherence to the doctrine to change in the next case or any cases afterward. It'll go down in the history books as a politically-motivated outlier case, not dissimilar to Bush v. Gore.
Sure, they would still adhere to originalism. But they would knowingly create a precedent where it doesn't apply. Future Justices are supposed to respect precedent, so this means handing future liberal courts a useful new tool to dismantle their contribution to legal theory.
Is saving Trump from himself worth ending their own legacy?
I'd really like to think that these justices still care about things like legacy and consistency, but I'm not sure that's the case. I suppose we'll find out soon enough.
That, or they'll punt the ruling on some bullshit like waiting for Congress to act. That seems most likely at this point.
Bush v Gore came down to two things, and it's hard to find real fault with either.
The first is an Equal Protection claim - Gore wanted to recount certain parts of the state under different rules than the rest of the state was counted under. The argument was that doing so violated equal protection under the law and the entire state should be counted under one standard.
The other is that election deadlines are legal and enforceable. SCOTUS was actually really quick in handling Bush v Gore (Gore started his final recount on a Friday, injunction in less than 24 hours, oral arguments Monday, decision on Tuesday morning) and they still only released their opinion 2 hours before the deadline for election results to be certified.
Ironically, based on studies done by others after the election Gore still would have lost had his last recount been allowed to go through as planned (presuming he didn't demand further recounts after that), but he might potentially have narrowly won if the entire state were recounted under the standard he wanted to use, but that wasn't a recount he ever called for and it wasn't a recount that could realistically have been completed under the deadline.
You throw out election deadlines, and we'd have Trump still to this day trying to legally challenge Biden's election. You'll notice he stopped doing that in early December and switched to just being a bloviating blowhard trying to rile up his followers over it for that sweet, sweet scam money and maybe an off chance at a successful overthrow of the government that he ideally could plausibly deny if it went wrong.
I can't argue with that. I said I expect them to rule in Trump's favor, but the specifics will be interesting. It's also not unimaginable that they would rule in Colorado's favor. There is a tremendous amount of law and precedent that states run their own elections (plus everything I said above about the specific section of the Constitution in question) and I feel like the Supreme Court could be loathe to intercede any more than necessity demands.
Whichever way the ruling goes, I think the answer will be less interesting than the reasoning behind it.
wE dOn'T wAnT tHe cOuRt tO bE ruN by jUdIcIaL AcTiVisTs
At what point does the U.S.A need to start amending the constitution? I'll bet within in the next 20 years, they'll have to be serious amendments. Soon as the Boomer generation starts to lose politically. The U.S.A. seems to be in a holding pattern at the moment.
We can't while the Republicans control most of the states. Today we are far more likely to codify abortion bans, racism, and assignment of guns to every child born.
Yeah a constitutional convention would be an absolute nightmare at this point.
The problem is that there’s a lot of power held by people who are dedicated to acting in bad faith
Can't happen with current divisions.
An amendment starts with 290 votes in the House and they can BARELY get a 218 vote simple majority.
And thats even before you have to convince X number of GOP controlled statehouses to ratify something.
Yup.
290 in the House that can't reliably produce a 218 simple majority.
67 in the Senate that can't get 60 to over-ride a filibuster.
Then you need ratification by 38 states. In 2020, Biden won 25 + DC, Trump won 25.
So to get ratification on any hot button issue, you need ALL of the states on "your" side + 13 states from the "other" side.
Want to get rid of guns? Go ahead, find 13 red states who will agree, I'll wait. Hell, out of the 25 blue states, only 19 have Democratic state houses, so you'll likely lose 6 there too... now you need 19 red states and good luck with that.
Flip it around, want to ban abortion? Maybe you can get all 25 red states + the 6 blue states with Republican state houses, you're still 7 short. Good luck getting Washington/Oregon/California/Hawaii on board...