They are probably going to rule in Trump’s favor, but I’ll be curious to see their reasoning. There are reasons beyond the current situation that it might be bad to remove him from the ballot - for example observe the threats in other states to remove Biden from the ballot. While that is clearly retaliatory bullshit, how do we prevent, for example, Texas deciding that whatever Biden is doing or not doing on the border amounts to insurrection and so he’s off the ballot? And Biden could sue to get on the ballot, but that could be costly and if there isn’t a stay by the court it could take until after the election to prove he should’ve been on it. Without a way to forestall this, we run the risk of a victory over Trump today creating havoc in the future.
That being said, the court is packed with originalists, and if we just go by the letter of the law and precedent and figure it is for the legislative branch to fix the problems, then it’s really hard to argue that a state is compelled to allow a candidate on the ballot that they deem has committed insurrection. Every hole you might poke in it has already been answered definitively. Is the law meant to apply to the President? Absolutely 100% as you can see from the record of congressional debate over it. Must the person be found guilty of a specific crime? No, that has never been the case and it was so applied at the time. Gorsuch himself ruled that a state may exclude from the ballot a candidate who is ineligible to serve.
Every single question of law seems to have been answered definitively. Plus, Trump is an albatross. He is destroying the Republican party from within and the adults in the room know it but are powerless (gutless, I think) to stop him. Behind the scenes they might well be praying to the Supreme Court to offer them a solution.
I believe it could go either way, but I’m going to assume they will restore Trump to the ballot because of politics and perhaps looking at the future it is the least-disruptive change. As much a I hate Trump and would love to guarantee he cannot be President, I’m not sure the future is best served by keeping him off.
What happens if states collude to deny one (or any) candidate 270 electoral votes? Well, then each state gets a single vote which will (as things currently stand) go to the Republicans every single time. There are states so gerrymandered that they have Democrat-majority populations but Republican-controlled legislatures, so this doesn’t seem to me to be an unrealistic possibility. This would obviously be terrible if the Supreme Court rules against Trump without also somehow preventing this sort of thing.
Caveat: I’m not a lawyer or expert on any of this. My concerns about possible results of keeping him off the ballot might be completely unfounded.
Every hole you might poke in it has already been answered definitively. Is the law meant to apply to the President? Absolutely 100% as you can see from the record of congressional debate over it. Must the person be found guilty of a specific crime? No, that has never been the case and it was so applied at the time. Gorsuch himself ruled that a state may exclude from the ballot a candidate who is ineligible to serve.
I think Trump’s entire argument is going to be a due process one - sure, 14A Section 3 applies to the President, sure it doesn’t require being convicted of a crime as such and of course a state may exclude from the ballot a candidate who is ineligible to serve. But who makes that determination, and under what standard? Just realize however you answer that question, the GOP will use that answer to it’s fullest extent against any Dem they can.
In the cases where it has been applied historically we were talking about public officials of an organization engaged in open rebellion against the US. There was no question of fact as to whether or not such a person was engaging in insurrection, as their public titles were leadership roles in a rebellion.
With Trump that’s…murkier. It’s not like he personally led an attack on the Capitol, he was too much of a pussy to do that. His speech at the initial rally is almost certainly constitutionally protected political speech, incitement is a very high bar to meet in the US. It’s intentionally murkier so as to create levels of indirection and questions of fact to make it harder to pin him down legally in case it failed.
Or else they’ll argue that a primary election is a private organization borrowing public infrastructure to decide who they want to back and thus the party is the only figure that should have any say who appears on their ballot. They could also choose to caucus instead, if they wanted. This would only apply for the primary ballot and not the general ballot, though.
Personally, I’m hoping for Trump to be barred from the general ballot, the GOP to throw 2nd place on it instead, and some Dems out there to be smart enough to pretend at being a fascist and try to convince GOP voters to write in Trump because “Those DeMoNRaT Leebruls Cant Stop the Trump Train!” which would do a fantastic job at splitting the GOP vote and guaranteeing a Dem win.
He’s absolutely responsible for the jan 6 2021 insurrection. But he’s not actually legally guilty of it yet, no?
I suspect that they might rule that only someone convicted of insurrection can be removed from the ballot; regardless of the actual letter of the law nor requiring that.
Keep in mind that the SCOTUS majority have spent decades advocating the doctrine of “originalism”.
Originalists think that the 14th means whatever the Reconstructionists who wrote it thought it meant. And it’s abundantly clear that Reconstructionists did not intend to prosecute former Confederates but still wanted to keep them out of office.
If the SCOTUS majority ignores what Reconstructionists thought in order to help Trump, it would be like the Pope ignoring Catholic doctrine in order to help Trump. They can do it, but they know their legal theory will never be taken seriously again. And that’s a big deal, since Justices are ultimately remembered for their legal theories.
True, but politics tends to put an asterisk by justices’ rulings. In Bush v. Gore, the Ds were arguing states rights, while the Rs were arguing federal supremacy. Completely against their usual positions, but everyone knows why.
States rights is associated with Republican elected politicians, but not so much the SCOTUS majority. There are many examples of Roberts et al ruling against states rights, in fact they recently sided against Texas in the state v federal border dispute. And they ruled against the independent state legislature theory last year.
Originalism, on the other hand, is near and dear to their hearts. They have basically never embraced another doctrine.
Fair point, but if the vote goes 6-3 and the Rs ignore originalism entirely in their opinion, I don’t think anyone would expect their adherence to the doctrine to change in the next case or any cases afterward. It’ll go down in the history books as a politically-motivated outlier case, not dissimilar to Bush v. Gore.
Sure, they would still adhere to originalism. But they would knowingly create a precedent where it doesn’t apply. Future Justices are supposed to respect precedent, so this means handing future liberal courts a useful new tool to dismantle their contribution to legal theory.
Is saving Trump from himself worth ending their own legacy?
They are probably going to rule in Trump’s favor, but I’ll be curious to see their reasoning. There are reasons beyond the current situation that it might be bad to remove him from the ballot - for example observe the threats in other states to remove Biden from the ballot. While that is clearly retaliatory bullshit, how do we prevent, for example, Texas deciding that whatever Biden is doing or not doing on the border amounts to insurrection and so he’s off the ballot? And Biden could sue to get on the ballot, but that could be costly and if there isn’t a stay by the court it could take until after the election to prove he should’ve been on it. Without a way to forestall this, we run the risk of a victory over Trump today creating havoc in the future.
That being said, the court is packed with originalists, and if we just go by the letter of the law and precedent and figure it is for the legislative branch to fix the problems, then it’s really hard to argue that a state is compelled to allow a candidate on the ballot that they deem has committed insurrection. Every hole you might poke in it has already been answered definitively. Is the law meant to apply to the President? Absolutely 100% as you can see from the record of congressional debate over it. Must the person be found guilty of a specific crime? No, that has never been the case and it was so applied at the time. Gorsuch himself ruled that a state may exclude from the ballot a candidate who is ineligible to serve.
Every single question of law seems to have been answered definitively. Plus, Trump is an albatross. He is destroying the Republican party from within and the adults in the room know it but are powerless (gutless, I think) to stop him. Behind the scenes they might well be praying to the Supreme Court to offer them a solution.
I believe it could go either way, but I’m going to assume they will restore Trump to the ballot because of politics and perhaps looking at the future it is the least-disruptive change. As much a I hate Trump and would love to guarantee he cannot be President, I’m not sure the future is best served by keeping him off.
What happens if states collude to deny one (or any) candidate 270 electoral votes? Well, then each state gets a single vote which will (as things currently stand) go to the Republicans every single time. There are states so gerrymandered that they have Democrat-majority populations but Republican-controlled legislatures, so this doesn’t seem to me to be an unrealistic possibility. This would obviously be terrible if the Supreme Court rules against Trump without also somehow preventing this sort of thing.
Caveat: I’m not a lawyer or expert on any of this. My concerns about possible results of keeping him off the ballot might be completely unfounded.
I think Trump’s entire argument is going to be a due process one - sure, 14A Section 3 applies to the President, sure it doesn’t require being convicted of a crime as such and of course a state may exclude from the ballot a candidate who is ineligible to serve. But who makes that determination, and under what standard? Just realize however you answer that question, the GOP will use that answer to it’s fullest extent against any Dem they can.
In the cases where it has been applied historically we were talking about public officials of an organization engaged in open rebellion against the US. There was no question of fact as to whether or not such a person was engaging in insurrection, as their public titles were leadership roles in a rebellion.
With Trump that’s…murkier. It’s not like he personally led an attack on the Capitol, he was too much of a pussy to do that. His speech at the initial rally is almost certainly constitutionally protected political speech, incitement is a very high bar to meet in the US. It’s intentionally murkier so as to create levels of indirection and questions of fact to make it harder to pin him down legally in case it failed.
Or else they’ll argue that a primary election is a private organization borrowing public infrastructure to decide who they want to back and thus the party is the only figure that should have any say who appears on their ballot. They could also choose to caucus instead, if they wanted. This would only apply for the primary ballot and not the general ballot, though.
Personally, I’m hoping for Trump to be barred from the general ballot, the GOP to throw 2nd place on it instead, and some Dems out there to be smart enough to pretend at being a fascist and try to convince GOP voters to write in Trump because “Those DeMoNRaT Leebruls Cant Stop the Trump Train!” which would do a fantastic job at splitting the GOP vote and guaranteeing a Dem win.
I am not a lawyer.
He’s absolutely responsible for the jan 6 2021 insurrection. But he’s not actually legally guilty of it yet, no?
I suspect that they might rule that only someone convicted of insurrection can be removed from the ballot; regardless of the actual letter of the law nor requiring that.
Keep in mind that the SCOTUS majority have spent decades advocating the doctrine of “originalism”.
Originalists think that the 14th means whatever the Reconstructionists who wrote it thought it meant. And it’s abundantly clear that Reconstructionists did not intend to prosecute former Confederates but still wanted to keep them out of office.
If the SCOTUS majority ignores what Reconstructionists thought in order to help Trump, it would be like the Pope ignoring Catholic doctrine in order to help Trump. They can do it, but they know their legal theory will never be taken seriously again. And that’s a big deal, since Justices are ultimately remembered for their legal theories.
True, but politics tends to put an asterisk by justices’ rulings. In Bush v. Gore, the Ds were arguing states rights, while the Rs were arguing federal supremacy. Completely against their usual positions, but everyone knows why.
States rights is associated with Republican elected politicians, but not so much the SCOTUS majority. There are many examples of Roberts et al ruling against states rights, in fact they recently sided against Texas in the state v federal border dispute. And they ruled against the independent state legislature theory last year.
Originalism, on the other hand, is near and dear to their hearts. They have basically never embraced another doctrine.
Fair point, but if the vote goes 6-3 and the Rs ignore originalism entirely in their opinion, I don’t think anyone would expect their adherence to the doctrine to change in the next case or any cases afterward. It’ll go down in the history books as a politically-motivated outlier case, not dissimilar to Bush v. Gore.
Sure, they would still adhere to originalism. But they would knowingly create a precedent where it doesn’t apply. Future Justices are supposed to respect precedent, so this means handing future liberal courts a useful new tool to dismantle their contribution to legal theory.
Is saving Trump from himself worth ending their own legacy?