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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'm happier it's a 9-0 with a messy concurrence than a 6-3 with a dissent, but it's still got a 3-justice concurrence with phrases like
Which, to be fair, the majority opinion is otherwise a very Roberts order. Lots of floaty theory, and broad strokes of general purpose, not as much focus on statutory text or history. Doesn't even really engage with the plaintiffs well, like smothering the reactions to Gorsuch's (and Alito's) hypothetical about what happens to an in-office oathbreaking insurrectionist under the self-executing theory into "not even the respondents contend that the Constitution authorizes States to somehow remove sitting federal officeholders who may be violating Section 3", which is true, but mostly because it wasn't asked in the mess of the oral args.
But I expect that, regardless of the text of the majority opinion, someone's working on a lawsuit today trying to get Trump disqualified under federal law.
I think it blocks my horror story -- where people start talking about what votes, after being cast, may be counted, which courts were already flirting too close with, and then Baude-Paulsen giving legitimacy toward even low-level poll officials having the power to make that determination, such that even if later-overturned becomes hard for Red Tribers to believe isn't happening while being impossible to bring lawsuit against -- but we'll see how people respond. If there's massive resistance from lower courts, it doesn't really need to.
Yeah, I was a bit concerned that Jackson might go the "please defy us and take extralegal means to prevent Trumpian election" route in a dissent, but that didn't happen which is good.
Remaining paths for Interesting Times include:
3.Trump wins, the filibuster gets nuked, thermostatic opinion delivers midterm victories for Democrats, Congress passes enabling legislation for section 3, Trump vetoes it to prevent himself from being removed from office, he gets impeached again for the veto...etc.
I think the most likely "interesting times" scenario is an election that is too close to call. In 2024, I don't think there is any body in America with the level of bipartisan respect needed to adjudicate a close election with the legitimacy needed for a trouble-free transition. (The Supreme Court had that level of legitimacy in 2000, but only just*). In addition, the risk of political violence increases the closer you get to Inauguration Day without a clear winner. If there is non-frivolous election litigation in one or more tipping-point states it is probably going to be about admissibility of postal votes, and most states are about as capable of doing a verifiably correct signature verification as Florida was of accurately counting a close election in 2000.
So (assuming that litigation ends with SCOTUS as Bush v Gore did and SCOTUS gives the election to Trump on a party-line vote) I think the most dangerous scenarios are variants of:
4.Biden is leading in the tipping-point state, Republicans sue claiming that a bunch of postal votes with minor procedural defects were improperly counted, SCOTUS orders them thrown out, handing the election to Trump. Democrats refuse to accept the result.
5.Trump is leading in the tipping-point state after a Republican SoS throws out a large number of postal votes for minor procedural defects. Democrats sue to have them counted, SCOTUS says no. Democrats refuse to accept the result.
6.The tipping-point state is close, and a full audit of postal votes is ordered. This takes longer than expected and the legal winner is not known in time to meet process deadlines.
The other problem in a close election is the likelihood of improper pressure being brought to bear on the electoral process in the tipping point state. One of the problems Trump faced in 2020 was that he needed to flip three states to win the election, so the first state to flip was facing the scenario where Biden still wins and a bunch of state political leaders get perp walked. Would Raffensperger have stood up to Trump if he was able to deliver the election?
I think there will be rioting in Portland and Seattle whoever wins the election. But that doesn't qualify as "interesting times".
* Bush ran as a moderate, and apart from the tax cut (which was just about bipartisan) governed as one until 9-11. It isn't clear what would have happened if he had treated Bush v Gore as a mandate to fire most of the federal bureaucracy and send the Texas National Guard into blue cities to round up illegal immigrants.
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