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Notes -
Trump case out on him being an insurrectionists.
https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf
Compared to the Reddit debates and how the SC would prevent this as a non-lawyer I thought the opinion was fairly basic and simple. It seems to me that they just declared it a Feds power in Federal elections and the States don’t get a say. Personally, I did come to a belief that it was self-executing.
I think they avoided really touching on all the novel legal theories both ways going around on Reddit or twitter.
It came down to what I believe was one of my original views that letting States have any say in declaring someone an insurrectionists would be a complete clusterfuck and basically turn into state legislatures electing Presidents. Therefore they declared it a federal power.
I would call this pragmatic versus legally correct in my opinion. They avoided 100 page treatise on whether the President is an office holder.
I predicted something between 7-2 and 9-0. 9-0 seems better for the nation.
I see this as a pretty nakedly political decision. Not partisan - I do not believe that the court is making its decisions on the basis of what is in Trump's or the GOP's best interests - but political in the broader sense. The court has sought to lower the political temperature as a primary goal, and the Barrett concurrence is merely the most obvious evidence of that.
That's not surprising and arguably not even unwise. I resent the idea of bowing to implied threats - but nonetheless those threats can be real, and tensions really are high. Principle is all well and good but in the real world principled decisions often have consequences. It's not the worst thing in the world that those holding power flinch away from inviting chaos and conflict.
But it's legally incoherent. Apparently all the other sections of the 14th amendment can be enforced by courts without enabling legislation. And apparently even section 3 is self executing in regard to state candidates. But suddenly when it comes to federal candidates, well, the amendment may as well not exist.
It's also nonsensical that a constitutional amendment banning insurrectionists from holding office has the practical effect of giving greater ballot access to insurrectionists than those who states seek to disqualify for other reasons. It's fine for RFK Jr to be on some ballots and not others. Why is it that a state cannot disqualify someone who tried to overthrow the government, but can disqualify someone who doesn't have enough signatures? Indeed, why is it that a state can't ban an insurrectionist from the ballot, but can just legislate away presidential elections entirely and appoint electors some other arbitrary way?
I'm dissatisfied. But I wasn't really expecting satisfaction, so whatever. There have been many incoherent court decisions in the past and there will be many more in the future, and the world will keep on turning.
Hopefully at some point Congress will have the good sense to pass a bill resolving all these issues for the future, once the Trump drama has passed.
Re other sections being self enforcing
We talked about this when the Colorado case came down. The Colorado dissent talked about it too. You are ignoring the context of American approach to rights and burdens generally and the 14th amendment context specifically.
Things like equal protection is a benefit granted to an individual. The insurrection clause is a restriction upon a general right. It is very different to say “you government cannot do that because it violates my equal protection notwithstanding no congressional bill” as opposed to “despite all of these vast open questions that need to be answered by a statue we will let a state disqualify a president due to the insurrection clause without implementing language.” That is, self execution is more properly thought of applying when the provision is protecting rights; not taking away rights. This default isn’t just because of the background principle of liberty but also basic sense of fairness — we shouldn’t punish someone due to massively underdetermined rules.
Moreover you also ignore the context of the 14th. Protecting citizens rights (eg due process or equal protection) was a way of limiting southern states ability to exercise authority. In contrast, the self execution of the insurrection clause could spur on state power. That is quite odd.
Finally there is just the general federal structure.
When you take all of those background rules etc you can easily read the insurrection clause as needing enabling law while at the same time believing eg equal protection does not. To do otherwise prioritizes a kind of strict constructionist approach which is generally impressive but all the more for constitutional exegesis.
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But these thing were not decided by the courts. Insurrection is a crime, in fact a very serious one. And given the very long history of presumed innocence, if you’re not convicted of a crime, you cannot be punished by the state for that crime. That’s not how presumption of innocence works. And the thing is that the states removing Trump from the ballot are doing so on the theory that being guilty of insurrection would disqualify Trump from the ballot. Again, not convicted of insurrection or inciting an insurrection or even inciting a riot. These are crimes with clear meaning in law that require the person be tried and convicted of.
I think it is reasonable to require candidates or at least parties to meet minimum standards to appear on the ballot. It’s reasonable to expect that a candidate for office has some minimum amount of support as measured by signatures. Provided this requirement is for all candidates and is reasonable and neutral, it’s not a problem.
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Do you mean the current Supreme Court? I don't follow much SCOTUS news in general, but I thought that people felt that this court was doing the opposite of that. They had two landmark rulings within the past two years that both pissed off leftists, hard: Dobbs struct down Roe in 2022, and last year they overruled affirmative action.
Could you clarify? I am likely just not understanding what you mean by political vs partisan, or by political temperature.
There are some leftists who will never be satisfied except by getting the rulings they want. These are the people calling for court-packing today because SCOTUS wouldn't disqualify Trump from the ballot. I wouldn't read that group's attitudes onto all of the left, or the broader electorate.
Broadly-speaking, the Roberts Court has hedged where possible and avoided making controversial decisions. This is why Roberts rewrote Obamacare's mandates as a tax. This is why Masterpiece Cakeshop got decided on technicalities without judging the broader questions of religious freedom and civil rights law. (And the cakeshop in question immediately got sued by activists again.) The affirmative action case you refer to is not the first time the Roberts Court has dealt with the question, and whil they did rule affirmative action unconstitutional, they refrained from making the other personality-based assessments (affirmative action by another name) unconstitutional.
Broadly-speaking, the Roberts court has been much more moderate than it's composition would suggest. Its membership has gone over time from 4-4-1, to 5-4, to 6-3, but this hasn't resulted in noticeably-bolder rulings. The Roberts Court is not using its conservstive majority to enshrine sweeping conservative precedents -- just mild ones.
The underlying problem is that the public has become more divided, and radicalized, and no longer sees what the Supreme Court does as a neutral application of straightforward law. It doesn't really matter what Roberts does, people will treat his legal decisions as political decisions. In some sense he brought this on himself, because many of his decisions are political compromises, and not grounded in a deeper law. But in effect his Court is fairly moderate, especially compared to what would be possible with a conservative majority.
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Can they?
You can't just bring a generic lawsuit alleging someone infringed your rights. Even where there is a statute, the courts have been famously willing to find exceptions and excuses. Instead, you must show harm -- in many cases, be prosecuted or threatened with prosecution! -- and then the courts can find the statute void, either as-applied to you or in general.
That's nowhere near the framework people are trying to stretch to this case. There wasn't even Colorado law allowing this sort of challenge, or setting a duty to the state to check ballot qualifications. Instead, the Colorado courts had to go so far as to find that it would be a wrongful act and thus mandated.
I don't think this is true, or part of the opinion. Even your favorite example of Couy Griffin had a state quo warranto statute authorizing the matter.
I'm not sure that courts would actually allow it, given other jurisprudence, but more immediately the rules in the Constitution about the Presidential election do focus more heavily on the candidates than the processes. That may not be your ideal, but the law does not have to match your policy preferences.
I'd be more impressed by a call for prosecutors to enforce the laws on the books, but I don't think you can get what you want from that.
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Agree.
If I was going to be legally correct I would have basically deleted this section from the constitution. The reason it’s self executing and doesn’t have due process was because everyone knows Jefferson Davis is guilty. The statute is limited to Confederates. Since all Confederates are dead this section is dead.
This feels like a Roberts style decision of finding the best way to keep the system tapes together with judicial restraint even if it’s sort of incoherent.
There's still 18 USC 2383, and it does require Constitutional authorization to do what it does.
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What ruling do you think would not have been incoherent?
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