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zataomm  1yr ago (text post)   6161 thread views

Colorado Supreme Court Thread

Link to the decision

I don't know to what extent there are established precedents for when a topic is worthy of a mega-thread, but this decision seems like a big deal to me with a lot to discuss, so I'm putting this thread here as a place for discussion. If nobody agrees then I guess they just won't comment.

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Trump has filed his petition to the Supreme Court asking them to review the Colorado decision. Lawyers writing briefs don't generally have the same opportunity for snark as judges when they write their opinions, so my favorite quote was:

constitutional speech protections should not turn on opinions from sociology professors

Which seems reasonable to me.

The brief contains a variety of arguments, some of which are stronger than others. One interesting argument I hadn't heard before is that while someone may be disqualified from holding office, they are still permitted to run for office. A bit hard to swallow in the case of a candidate counting on Congress to "remove the disability" after he gets elected to office, but, like I said, interesting.

The brief points out some deficiencies specific to the Colorado proceedings. Candidates are required to file a paper affirming that they meet the qualifications to be President, but the Colorado Secretary of State is not required to independently investigate this affirmation, and thus had no business doing so. A good point, but by now we have challenges across several states, so the Supreme Court is going to need to go bigger to resolve this issue.

The brief argues that the events of Jan. 6 were not an "insurrection", and even if it was, Trump did not "engage" in the insurrection. I agree with this, but my instinct is that the Supreme Court is not going to want to go so far as to make that determination.

The Supreme Court's two main options are unpalatable. They can:

  • Point out deficiencies specific to the Colorado procedure
  • Take up the case of Trump's eligibility themselves

The first doesn't go far enough, and won't resolve other states' cases, while the second goes too far, taking on more responsibility than the Supreme Court likes to have. For this reason, my expected outcome is for the Supreme Court to lean on section 5 of the 14th Amendment, saying that Congress and only Congress is able to determine eligibility for federal office. As @AshLael has pointed out, this is standard operating procedure for Roberts, he loves to write opinions which conclude by saying, in effect, "if Congress doesn't like this outcome, they are free to pass a new law to achieve the outcome they like."

Adam Unikowsky has a new article arguing pretty persuasively that the "holding office vs running for office" distinction is not going to fly. I don't think that's a conclusion that anyone here is going to resist very strenuously, but I thought it was a novel and intriguing argument and liked seeing it analysed seriously.

I don't think the "Not everything that is permitted is mandatory" part is very coherent. It would be a wonderful argument if there were clear statutory restrictions preventing insurrectionists from going on the ballot -- yet if such existed, we wouldn't be futzing around with these weird third- or fourth-degree restraints. Both Colorado's role and Baude/Paulsen position more generally is not that a state can block insurrectionists from the ballot, but that it must do so where any role to review qualifications exists. Unikowsky tries to shove this problem as if Thorton were the only limit, but Thorton is why Trump's lawyers argue this is clearly and egregiously wrong rather than merely incorrect.

The pragmatic argument is a lot stronger -- kicking this can down the road opens up a tremendous amount of worms, and heightens the risk of people literally marching on SCOTUS among far worse things -- but the pragmatic arguments give a lot of strong arguments toward either completely disqualifying Trump across the board, or completely limiting disqualification, and Unikowsky isn't making either of those arguments in context for Michigan.

((Separately, Unikowsky's aversion to clever solutions isn't as awkward as when coming from the emoluments clause fandom, but it's still pretty nakedly new given the man's role in Espinoza. Or, for that matter, when one examines how 'clever' this is, here.))

Separately, Unikowsky's aversion to clever solutions isn't as awkward as when coming from the emoluments clause fandom, but it's still pretty nakedly new given the man's role in Espinoza. Or, for that matter, when one examines how 'clever' this is, here.

What are you alluding to?

The above comment is over a year old, as a warning.

"aversion to clever solutions isn't as awkward as when coming from the emoluments clause fandom, but it's still pretty nakedly new given the man's role in Espinoza"

In the article AshLael wrote above, Unikowsky said:

My most fundamental objection to the NRSC’s position is that I’m allergic to excessively clever interpretations of the Constitution. I don’t agree with the NRSC’s theory for the same reason I don’t agree with efforts to distinguish “office of the United States” from “office under the United States”: these arguments treat the Constitution like the Da Vinci Code.

I don’t know how the Supreme Court should resolve Trump v. Anderson. But whatever the Court does, I hope its opinion hews as closely as possible to the ordinary meaning of the constitutional text.[emphasis added]

This is enough of an argument that it gets a header.

However, Unikowsky was the attorney of record for Montana in Espinoza v. Montana Revenue. At the risk of ironing over some finer details, the case involved Montana blocking (a program that indirectly funded) otherwise generally-applicable scholarships to religious schools, a few families suing the state to be allowed to access the program and winning at the district level, and then the state court getting rid of the whole program. There are ways to argue these policies, and Unikowsky made them at oral arguments, if not especially honestly. I can criticize them separately, if you'd like (please: "when you talk about discrimination, we can mean two different things" is a great opportunity).

For the purposes of this comment, the simple problem is the text of the First Amendment holds "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof [...]". Unikowsky takes the various epicycles of the legal jurisprudence as a given: "respecting an establishment" means pretty much any religious funding or suggestion thereof, "prohibited free exercise" has its Smith-level deference to 'unless the state wants to get in the way', and you get into this very clever situation where he can argue the state either can block opportunities to religious groups or can close down a program specifically to avoid helping religious groups. But its plain text does not actually say that.

There are ways to argue these policies, and Unikowsky made them at oral arguments, if not especially honestly. I can criticize them separately, if you'd like (please: "when you talk about discrimination, we can mean two different things" is a great opportunity).

I enjoy your effort-posts about law, so criticize Unikowsky to your heart's content!

With regards to Unikowsky's position on clever interpretations, how do you think a litigator's arguments on behalf of clients should be weighed against the views they independently express? Doesn't "zealous representation" require you to present any "valid" argument furthering your client's interests, regardless of your personal preferences? My idea of an argument that damages a lawyer's credibility would be something like former CA AG Harris arguing that CA was justified in not releasing prisoners, as SCOTUS directed, due to the state having a supposedly overriding 13A interest in extracting their value as laborers.

I enjoy your effort-posts about law, so criticize Unikowsky to your heart's content!

At least for Espinoza, Montana's argument was pretty much just one too-clever-by-half argument after another:

  • Discrimination is bad. But unlike discrimination on race, which is never permissible (though see his commentary on SFFA here, which does not make the same division), discrimination on matters of religion are permitted because of the establishment clause, so long as it does not discriminate from one religion to another. Sure, this amendment was near-certainly motivated by dislike of Catholics in its original form, and the analysis when the state constitution was reenacted was perfunctory, but it's not from the Champagne region of France, so why look closer?
  • Wait, what does that whole "free exercise clause" thing mean, then? Oh, it requires his preferred position, too: access to a nonsectarian and generally applicable fund might give "government leverage to influence religious education", so the free exercise and establishment clauses together doubly mandate a rule against funding being available to religious people. You thought perhaps it would be wiser to stop government influence of religious education by allowing states to challenge government influence of religious education, so I'm sure Unikowsky will eventually have some commentary on the ministerial exception someday, but it's not happened yet.
  • And the various process concerns Montana raised in the brief are pretty pretextual. There wasn't a federal question or a bunch of other similarly prescribed other state laws, despite the existence of Blaine Amendments in over a dozen other states or the state's interpretation of the federal constitution, because there's some very specific things about how the program was funded or how the Montana Court blew up the program. Any other case would have these sort of specifics, if different in detail, but it's an argument, throw it against the wall.

With regards to Unikowsky's position on clever interpretations, how do you think a litigator's arguments on behalf of clients should be weighed against the views they independently express?

I think it's a more plausible argument for public defenders than it is for people on the SCOTUS bar. Unikowsky was not assigned to work with Montana out of some computerized selection criteria or preset longstanding contract. At minimum, he joined Jenner and Block knowing it was arguing these sort of cases with this sort of valiance, he's done so in a variety of contexts (eg whether public employees can be fired for inadvertent misgendering), and some of those he's argued separately from his clients or employer. More likely, while he wasn't the sole decision-maker, he had a pretty sizable degree of control and advocacy, and personally chose to be involved in the case.

Within that context, there are still some places where I can understand someone just having to work with what they've got -- Unikowsky's response to the animus discussion is misleading, but heightened-rational-basis-because-animus is basically fatal, so if you don't have better arguments yolo, okay. But his statement in AshLael's link is about what he sees as what the role of SCOTUS; if that's not the same thing as what's more likely to succeed before SCOTUS, it means nothing.

My argument is not about Unikowsky's credibility as a lawyer (I don't, frankly, know). It's about whether his analysis tells you anything about what the courts will do, or even about what principles he thinks the courts should follow in general, rather than just what he thinks will get him his way in a given case.

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