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PaperclipPerfector  3mo ago (text post)   25821 thread views

Culture War Roundup for the week of January 15, 2024

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https://apnews.com/article/ron-desantis-250c8ed4b49843350e258f0c2754c8ba

Ron Desantis has dropped out of the republican presidential primary and endorsed Trump.

Now, obviously, this will not change the end result- Trump will win the primary and obtain the republican nomination. But, there is a dim chance that it takes Haley into the #1 spot in New Hampshire, embarrassing for Trump, by consolidating the anti-Trump vote. Granted this is an increase from like 5% to 10%, but it's more likely to give Nikki Haley a boost before a do-or-die primary for her. It's I guess dimly possible that there's a few voters undecided between Desantis and Haley who will now support Trump, but I have to think this isn't a very big group.

Ron Desantis will likely try to find a Trump cabinet position; but it seems likely that he won't get one. Trump's broadsides against Desantis have lasted long enough to think they might be genuine. I would expect Desantis to finish his term and then look into either a senate seat, or a run in 2028.

I notice I am confused. There is a 10-15% chance that the Supreme Court rules Trump ineligible for the presidency. There is an additional 10-15% chance that Trump is literally in jail by the time the convention rolls around. Just because DeSantis can't beat Trump in a primary doesn't mean he has no chance. Even if he doesn't have the money for an active campaign, endorsing Trump kills his momentum for a "told you so" convention chaos campaign.

Is that where the prediction markets are? I think the SCOTUS probability is overestimated.

This market has been pretty consistent at 80-90% that the Colorado decision is reversed. I think people tend to underestimate the likelihood of an affirmation for a couple of reasons:

  1. Supreme Court justices are electorally insulated from the excesses of Trumpism.

  2. Conservative Supreme Court justices are uniquely predisposed to be unsympathetic towards mobs of people storming government buildings to protest official processes they disagree with.

Unfortunately the Supreme Court isn't the end of it unless they rule categorically that Trump is and will remain eligible, which seems unlikely. The only real way to do that is are the related, very dodgy "The Presidency isn't an office under the constitution" and "The Presidential oath isn't an oath to support the constitution" arguments. Roberts might like those, but I don't know about the others. If they claim the standard of law used was wrong, the Colorado Supreme Court on remand can just claim that even under the Supreme Court's given standard of law, Trump is out (They can do this whether or not it plainly makes sense or not, as with the various gun control cases following Bruen). Even if SCOTUS demands an actual conviction, Jack Smith can just whip up a DC jury and get one.

There is a strict "did Trump commit insurrection (or aid/comfort enemies) as defined by 14th Amendment" option. It has some benefit in the sense that the dicta could cordone off efforts to disqualify people other than Trump, although I expect it's even less appealing to Roberts and a good few other people on the conservative side of the bench, especially with how mushy it'd have to go between factual analysis and legal analysis.

That said, I think you're being insufficiently paranoid. There's a lot of problems with any result that doesn't either clearly disqualify him, or clearly mark attempts to disqualify as violating a clearly established statutory or constitutional right, that are far bigger than Trump or the 2024 elections.

There is a strict "did Trump commit insurrection (or aid/comfort enemies) as defined by 14th Amendment" option.

The Supreme Court in its role as an appeals court would not decide this question; it's a question for a trial court. As an appeals court it can only say that the legal theory the court used to decide Trump committed insurrection is wrong, or that factual findings it made were baseless or wrongly admitted (e.g. admitting January 6 hearing testimony). And even the trial court can only look at the case put before it; nothing the Colorado courts do precludes a Federal trial for insurrection in DC. So the only way the Court can actually settle the issue is by declaring that as a matter of law, Trump cannot be disqualified full stop.

That said, I think you're being insufficiently paranoid. There's a lot of problems with any result that doesn't either clearly disqualify him, or clearly mark attempts to disqualify as violating a clearly established statutory or constitutional right, that are far bigger than Trump or the 2024 elections.

Those problems are unavoidable no matter what the result. Anything that clearly disqualifies him marks the whole Federal election system as clearly illegitimate to maybe 30% of the population, maybe a bit more. Anything that does not marks the Supreme Court as clearly illegitimate to maybe 40% of the population (a 40% including most of the elites and those in government), maybe a bit more. Anything that leaves it muddy will have to be resolved one way or another by the election, unless Trump dies.

The Supreme Court in its role as an appeals court would not decide this question; it's a question for a trial court. As an appeals court it can only say that the legal theory the court used to decide Trump committed insurrection is wrong, or that factual findings it made were baseless or wrongly admitted (e.g. admitting January 6 hearing testimony).

While extraordinarily unlikely, it's at least procedurally possible for SCOTUS to provide dicta far broader than a ruling itself, such as defining Section 3 insurrection specifically or requiring specific types and grades of behavior that isn't present here. People can (and probably will!) still defy that! cfe my Bruen rants. But it's an option that makes those things defiance.

And even the trial court can only look at the case put before it; nothing the Colorado courts do precludes a Federal trial for insurrection in DC.

That's fairer, and while the timeline for an insurrection trial is wildly implausible, there's nothing preventing people from taking some other federal conviction and (even implausibly) reading it as a Section 3-disqualifying behavior.

Anything that leaves it muddy will have to be resolved one way or another by the election, unless Trump dies.

I wish I was that optimistic: this weapon doesn't get put away just because the highest-profile target disappears, and it doesn't stop on November 6th or even January of next year.

Smith won’t be able to do that in time.

IMO the most convincing argument (and what I think SCOTUS is most likely to base its decision on) is that section 3 disqualification, specifically, is not self-executing under section 5, and that some specific action (legislation?) by Congress is necessary to invoke it, which has not happened in this case.

On the other hand, I doubt a partisan Congress (maybe even a single house) passing a simple-majority resolution that "[X] is disqualified from seeking office under the Fourteenth Amendment" really should be sufficient either.

Section 5 has a bunch of parallels in other amendments—it would be weird if that meant that slavery was effectively legal unless Congress passed legislation, under the 13th amendment. I don't find that terribly convincing.

I think the best case is just that what Trump did didn't rise to that level, but I don't know that that works out legally the right way for SCOTUS to rule on. I also wouldn't be shocked if they argued that one of the former acts suspending it like the one in 1872 applies to modern cases too. Maybe the officers one, but that seems tenuous to me, since it sounds like the people at the time generally agreed that the presidency was an office, from what I've heard.

As I said elsewhere, I hope Congress just suspends this whole contentious clause in this and all other cases, because once the Supreme Court rules, as soon as there's a clear standard, everyone will be trying to shoehorn their political opponents into that standard, across the board, not just Trump.

Section 5 has a bunch of parallels in other amendments—it would be weird if that meant that slavery was effectively legal unless Congress passed legislation, under the 13th amendment. I don't find that terribly convincing.

In fairness functionally other sections of the 14th amendment were not enforced until the Civil Rights Act a century later, whether or not that was legally reasonable or what the lawmakers intended.

The "not self-executing" argument is the same as the "requires a conviction" one; a conviction under 18 U.S. Code § 2383 would disqualify Trump.

A difference would still lie in whether Congress alone can disqualify a candidate without the involvement of the judiciary, given that they don't have the power to pass bills of attainder.

That wouldn't make sense under the text of section three, specifically, "but Congress may by a vote of two-thirds of each House, remove such disability." If section three required congressional action, then congress would only need a simple majority of each house, since they could just amend the law or pass a special resolution.

Also, as I understand it, Colorado's case is based on a Republican-led Originalist reading of the relevant law, which is exactly what the conservative justices who lead the court have staked their entire careers on, and is pretty open-and-shut obviously correct on that reading.

They may well abandon all their claimed principles and make an activist ruling of some type, but I think people are too confident that they will. I think people assume that because what Colorado is doing seems surprising and weird and motivated it must de facto have no strong basis in law, but I think that's just not true.

  • -14

Also, as I understand it, Colorado's case is based on a Republican-led Originalist reading of the relevant law, which is exactly what the conservative justices who lead the court have staked their entire careers on, and is pretty open-and-shut obviously correct on that reading.

It certainly is not open and shut obviously correct. The 14th amendment states "that anyone who "shall have engaged in insurrection or rebellion against [the US], or given aid or comfort to the enemies thereof" is ineligible to hold office. Trump has not done any of those things. He has not remotely done any of those things.

He's certainly given aid and comfort, the question is whether the people he gave aid and comfort to were insurrectionists.

No, if there were a legitimate question here, it would be whether the people he gave aid and comfort to were "enemies thereof", that is, enemies of the United States. Insurrectionists would not necessarily be enemies of the United States. As far as I know, no state of war existed between the rioters and the United States, so the narrowest definition is not fulfilled.

I don't really agree with that but even if we accept your premise, it seems pretty obvious to me that the rioters are not "enemies of the United States" (which is what the text says he would've had to give aid and comfort to). They are citizens who were trying to effect what they saw as positive change for the country, not trying to undermine it.

I mean were the Confederates not that? Most people believe that what they are doing is for a good cause. That's certainly never been a criminal defense in any other situation, AFAIK.

Also I'm not sure it matters what the average useful idiot on the frontline thought, if it was being organized and armed by people with a different motive. If there was a plot by anyone to defraud the election, even if it's only a minority of organizers behind the overall movement, that's still a set of insurrectionists that were aided and comforted.

It was definitely an armed invasion of the capital while votes for President were being counted with the intention of disrupting that process, in which legislators were evacuted by security and held in a secure location, in which property was damaged and stolen, in which people were injured and killed.

People were prosecuted and imprisoned for an assault on the capital, that kinda feels like the legal system views them as enemies of the state. However you feel about it personally, it was a pretty big deal and the legal system obviously takes it more seriously.

  • -10
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Especially given that insurrection would seemingly be informed by the civil war

Let's not forget another thing conservative justices have to keep in mind: that leftist mobs will be dispatched to the justices' homes if they dare to decide cases "incorrectly."

Roberts is conservative in that he doesn’t want to trigger chaos. Even if he 100% agrees with the Colorado ruling he’s going to realize a self executing 14th amendment means that any State can just decide to not let a candidate on the ballot.

The end result would be selecting Presidents by the state legislature.

But there is a also a big gap between conservatives don’t like seeing rioting and deciding to agree that rioting is the same as insurrection. Words still need to have meaning.

I think a universal reversal with the Democrat judges voting with the conservatives to reverse is far more likely than the conservatives banning Trump.

It would be extremely ironic if Trump's elector slate shenanigans end up actually achieving the desired result for every subsequent election but not for any of the ones that involve Trump.

I just don't see the court radically changing the political process like that though.

I do not think so either. I can’t convince Reddit that this opens the door to the 14th being used against any politician but it’s my belief it could be under the Colorado standard.

I think back to Roberts keeping Obamacare when he could have used the tax but to throw the whole thing out. He’s not going to want courts taking too much power and will find a way to squash this. Personally, I assume Roberts probably hates Trump but any personal opinions he has on Trump won’t keep him from seeing the precedence allowing Colorado’s ruling to go thru being a problem.

The big issue with going back to states legislatures pick their candidate would be it would be extremely unpopular. Many might not like the electoral college but Americans are still going to want the vote on this. Even if a good legal argument existed for this maneuver the court would still find a way to block it because of unpopularity.

Of course, selecting presidents by state legislature is still completely legal federally and how it used to be done, I believe. But this would likely be weaponized in other races.

If a state legislature decided to ignore all votes for Trump when selecting their electors, then those voters might well have a case under Section 2 of the 14th Amendment. (Unless those voters' "participation in rebellion" could be decided by the states?) Of course, a state might find the constitutional penalty of losing electors superior to the possibility of a Trump victory, if the latter has any real chance of occurring at all.

Seems unlikely to me. There's plenty of precedent. In 1892, Grover Cleveland wasn't on the ballot in five states, in 1948, Truman wasn't on the ballot in Alabama, and in 1964, Johnson wasn't on the ballot in Alabama. There were a few other cases. Ballots weren't done the same way at the time of the passage of the amendment, as well.

I'm hopeful, but there's a risk that Roberts may not be choosing from the full possibility space, but from a small number of best alternatives to negotiated agreement. And a lot of those leave states (and worse!) to just decide to not let a candidate on the ballot (and worse!).

I think it is 7-2 with Kagan siding with the conservatives

Eh, I think if they can’t get Kagan to vote with them there’s a pretty good chance of Sotomayor and KJB voting with her to get unanimity.

That would be my guess for the consensus here which tends to have an assumption Kagan is a real judge and Sotomoyer/Brown are just partisan votes.

Personally I’m hoping they step up here and vote with the conservatives.

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