At 10:00 AM today EST the US Supreme Court will be hearing oral arguments on the attempts by members of the Democrat Party and others to keep former President Trump off the ballot in states by claiming that he committed insurrection on January 6, 2020. I will be listening to the oral arguments and giving you a report on them later today. Go here if you wish to listen to the oral arguments.
I find this whole attempt to be bizarre and an example of how his adversaries would burn down the Republic in their madness against Orange Man Bad. Why do I find it bizarre? Let me count the ways:
- Relic of the Civil War: Until this latest time of folly there was very little commentary on Section Three of the Fourteenth Amendment. It was regarded as a historical curiosity, a failed attempt by Radical Republicans to maintain control of Congress in the wake of the Civil War which quickly became a nullity. To revive this now, and attempt to shear it from its historical context, is new wine in old wineskins from a legal perspective, something which usually ends in disaster.
- History of Section Three: An earlier version did include the President and the Vice President. They were stripped from Section Three. The language of “or, hold an office” refers to appointive offices, at least by the consensus of most commentators prior to this current matter,
- Insurrection in the Eye of the Beholder– The US has had one great rebellion in its history. Everyone knows it. That is why there was no attempt to define it by the drafters of Section Three. Everyone knew it was aimed at former Confederates. The US has had one great rebellion, but has often seen violent riots, and forays onto Capitol Hill, think the Kavanaugh hearing circus, by those seeking to influence Congress by unruly demonstrations. Not infrequently these riots and forays have had the backing of one party or another, almost always the Democrat party. In 2020 Democrat elected officials stood behind the BLM riots, one tool in their arsenal to get Orange Man Bad. A particularly violent riot occurred in DC and Trump was chastised for even thinking about bringing in the military to clear the streets and restore order. Vice President Harris, then Senator Harris, established a fund to bail out BLM accused rioters. Insurrection is an ambiguous term, but its use against Donald Trump, while ignored in other contexts than the J6 riot, has everything to do with politics and nothing to do with the Constitution.
- Due Process-I realize that when it comes to Orange Man Bad his foes have not the slightest concern for Due Process, but the Supreme Court probably will. Under Federal law Insurrection is a criminal offense. Donald Trump has not been accused of such a crime let alone convicted of it. The proponents of using Section Three to keep Trump off the ballot argue that deciders can simply assume Trump is guilty of insurrection. Not in America.
- Constitutional Conflict-The Constitution clearly prescribes the requirements for an individual serving as President. The States may not add to those requirements. The idea that a provision in the Constitution, which does not apply to the Presidency, can be used by the States to keep a presidential candidate off the ballot should be regarded as a joke and not a serious proposition.
I could go on at some length, but you get the idea. This attempt to get Orange Man Bad is laughable as a matter of Constitutional law, but deadly serious as an example of the tearing of our Republic by those who will go to any and all ends against Orange Man Bad.
Update:
Oral argument begins.
Trump’s attorney begins by noting that the phrase “holding office” refers to appointive offices.
Clarence Thomas: Is Section Three self executing?
Trump’s attorney: Not self executing. States have no role absent enforcement legislation by Congress.
Roberts: What if a candidate admits to be an insurrectionist?
Trump’s attorney: States would have no role absent enforcement legislation by Congress.
Jackson: Argues that Section 3 is self executing for at least local offices, and Congress, based on States preventing Confederates from running for office.
Trump’s attorney: Griffen’s case held that Section 3 is not self enforcing in the absence of enforcement legislation by Congress. Congress as a result passed the Enforcement Act of 1870, later repealed by it in 1948.
Alito: Section 3 applies to whether an elected candidate can serve, not whether he can run.
Alito: Different State courts could reach different conclusions as to the applicability of Section 3.
Sotomayer: Can’t a State enforce disqualifications as to age, citizenship, etc?
Trump’s Attorney: As to Section 3 there must be enforcement legislation by Congress.
Kavanaugh: Isn’t the Griffen case dispositive as to the intent of Section 3?
Trump’s attorney quickly agrees.
Back and forth with several justices as to the meaning of “holding office” under Section 3.
Barret: Does Trump have a Due Process right under Section 3?
Trump’s Attorney: Due Process issues would not resolve the case once and for all.
Jackson: Attempts to argue that J6 was an insurrection.
Plainiff’s attorney: Trump is an insurrectionist. Section 3 applies. States are allowed to safeguard the ballots of their voters.
Thomas: Any example of national candidates being excluded by the States under Section 3?
Plaintiff’s attorney cites a Congressional candidate in Georgia in 1868.
Thomas: He understands States controlling State offices. He does not see this having been applied to national candidates.
Alito: Wasn’t the whole purpose of the 14th Amendment to restrict the power of the States?
Kavanaugh: Endless questions as to how the Section 3 insurrection provision would be enforced, questions which could only be answered by enforcement legislation enacted by Congress.
Barret: How can Colorado decide this issue for the whole nation?
Roberts: Does the power of the States in this area have to come from some Federal Constitutional provision, notably Section 3?
Roberts: Wouldn’t the States under Section 3 enforcement by the States create chaos:
Plaintiff’s Attorney; It would be reversible for a State not to find that Section 2 bars Trump based on what Trump said on J6.
Kagan: Hasn’t the Supreme Court restricted the right of States to remove candidates from the ballot because such action impacts upon the nation? Aren’t there certain national questions that are not within the purview of the States?
Plaintiff’s Attorney: The States would merely be enforcing the Constitutional provision of Section 3.
Gorsuch: Address the officer and office distinction.
Plaintiff’s attorney and Gorsuch go around the confusing distinction.
Kavanaugh: Look at the process in Colorado. Doesn’t this point out the problem of leaving Section 3 enforcement to the States?
Plaintiff’s attorney denies that Trump wasn’t given due process.
Kavanaugh: Congress could simply pass enforcement legislation to prevent an insurrectionist from taking office?
Kavanaugh: Why not let the people decide at the ballot box?
Plaintiff’s attorney: Section 3 protects democracy from insurrectionists. This case illustrates the danger of an insurrectionist disenfranchising voters by seeking to overturn an election.
Jackson: Uniformity concerns as to Presidential elections if States can ban candidates under Section 3. Why didn’t they name President under Section 3?
Attorney for Colorado Secretary of State: Colorado did everything right.
Thomas: Is there an express provision to determine who a qualified candidate is?
Alito: Questions procedures used in Colorado. (Lots of questions on this by other Justices chiming in.)
Alito: Should the Court give deference to the factual record below?
Alito: Wouldn’t other States retaliate?
No further questions from any of the other Justices.
Rebuttal by Trump’s attorney. Limitation of the power of the States to govern elections under the Elector Clause. Refers back to the office, officer distinction.
No questions. The case is submitted to the Court.
I think oral argument demonstrated that the Justices understand that leaving Section 3 enforcement to the States would lead to unending chaos. We shall see soon enough.
I pity the fool who has to sit and listen to them. Probably a good time for a long snooze.
Ps. Not directing my comment to you Don- but rather the person who has the ordeal to have to listen to them and make judgement on the whole clown show…
Meanwhile there is a man with full-blown dementia leading the free world. And no one is batting an eyelid.
If the S.C. decides that Trump could be kicked off the ballot, I am forced to wonder if some of the more conservative states would kick Joe off over his obvious dementia.
And….could that be the out the Deep State is looking for? A two-fer?
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The world has gone insane.
My worry is Trump’s lawyers. He seems to never have good lawyers. We’ll see.
The briefs filed by them and those supporting Trump have been good. Oral argument rarely makes a difference to the ultimate outcome. It does often give a good indication of how individual justices are leaning.
Sotomayor, Kagan, and Jackson will vote to keep Trump off the ballot.
Thomas, Alito, Gorsuch, and Kavanaugh will vote to keep Trump on the ballot.
Roberts has proven to be a traitor to conservativism, and Barrett with her decision on Texas’ actions to protect against illegal immigration has proven to be unreliable.
My prediction is that it is 5-4 in favor of keeping Trump on the ballot.
Roberts will side with the dissent in a misguided attempt at “recognizing the strongly held views held by both sides of the debate.” If he was the deciding vote; I really don’t know what he would do. If he can look “principled” by betraying the right at the expense of the law, but not actually change anything by his decision, he will do that in a heartbeat.
My prediction is 6-3 with Roberts assigning the decision to himself and writing a narrow decision keeping Trump on the ballot. A decision allowing States to keep Trump off the ballot would lead to anarchy up and down the country as Red States tossed Biden off the ballot.
I have little doubt that the SC will rule in favor of keeping Trump on the ballot, the alternative would be to invite chaos into an already widely mistrusted election system. I’m very eager to see why they rule this way, though. Will they say that J6 wasn’t an insurrection? That might be a narrow win, but it could solve a lot of problems down the road. Will they use the due process rationale? That should get them a unanimous ruling. You can’t really punish someone for committing a crime if they haven’t been charged, tried and convicted of one, can you?
Senator Cruz argues that Roberts very much wants a unanimous court here to avoid the perception of this being a political ruling.
Yes, I think it will be a decision in favor of sanity and the Constitution.
I however am concerned that there will be some blunder of prose in the opinion that will be a Dread Scott style hammer for future mischief.
What think you, Don?
I expect the decision to be fairly brief, although unintended consequences from a Supreme Court decision do happen, but can be corrected by subsequent Court action.
How about letting the people decide at the voting booth. Freedom.
After seeing the surprising (to me) question from Justice Kagan on the limitation of states’ powers to remove candidates from the ballot, and that Jackson actually asked a couple of relevant questions, maybe Roberts will get his 9-0 decision after all. Very interesting.
Interesting how the framing of Trump and this past Election (Russia collusion, Laptop story, voting law changes, J6 false flag events) aren’t counted as an insurrection.
It’s all blatantly biased.
Rules for Radicals, stipulates “ the real action is your opponent’s reaction.”
And that’s ultimately what the Democrats are hoping for. A reaction. So they can say, MAGA bad… MAGA bad.
Cruz was at one time a clerk for Wm. Rehnquist, so he has as an informed opinion about the mentality in the place as anyone.
My rough guess about Roberts is that he has a regard for appearances which trumps everything else. He wants the controversies presented to the court to be as niggling and esoteric as possible and he wants to maintain the fiction that members of the court are invariably impartial. His ideal would be a 9-0 decision which would be worded so as to allow cretins like the Colorado Secretary of State to save face but persuade like-minded cretins elsewhere to stop ruining lunch hour at the court.
Why were there no questions on the need to convict Trump of insurrection prior to trying to apply section 3 of the 14th Amendment to Trump?
Why is it taken for granted that Trump did commit insurrection?
What did Trump say on or about January 6 that makes the Plantiff’s Attorney certain that he is an insurrectionist?
Why does the Plantiff’s Attorney say Trump was given due process when in fact there was no trial for insurrection?
Or am I missing something here because I am ignorant and uninformed?
And yes, I shudder at the thought of what Trump could have said that might implicate him in something he never actually did. But the fact is that regardless of his big mouth, he did NOT commit insurrection and any sane Court would throw the case and his fat behind out to bounce on the concrete of the sidewalk outside the Court Building. He led no armed bandits to take over the Capital.
I don’t like Trump, and furthermore, as others have said, he is his own worst enemy, but this is all ridiculous to me. And given a choice between baby-murdering, sodomy-sanctifying Democrats, and Trump, my vote is for Trump.
Why were there no questions on the need to convict Trump of insurrection prior to trying to apply section 3 of the 14th Amendment to Trump?
That was raised by the Justices.
Why is it taken for granted that Trump did commit insurrection?
The Plaintiff’s counsel was the only one taking that for granted, and the hapless mouthpiece for the Colorado Secretary of State.
What did Trump say on or about January 6 that makes the Plantiff’s Attorney certain that he is an insurrectionist?
Trump made a lot of stupid statements about how the crowd needed to convince Pence to play fast and loose with counting the electoral votes. However, Trump clearly was talking about peaceful protest outside Capitol Hill.
Why does the Plantiff’s Attorney say Trump was given due process when in fact there was no trial for insurrection?
Lawyers have no shame often in argument.
So, Ketanji Jackson attempted to argue that J6 was an insurrection?!? The justice doesn’t know what a woman is, but she knows an insurrection when she sees one {eyeroll}
Thank you, Donald.
She really wasn’t making an argument one way or another on that. What was interesting was her apparent skepticism about Section 3 applying to the Presidency.