2024-02-08 09:33:47
I listened to the SCOTUS oral argument in Anderson v. Trump, the case involving Trump’s disqualification from the Colorado ballot due to his alleged participation in an “insurrection” on January 6, 2021, which the proponents claim automatically disqualifies him under Section 3 of the 14th Amendment.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
***
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Making predictions based on oral arguments normally is risky, but I’ll take that risk: The Supreme Court will reverse not on the merits of whether Trump committed insurrection (that is not before them), but on any one of a number of issues raised that the Colorado Supreme Court exceeded it’s authority, including among others,
- Section 3 only bars holding office, not running for office so it’s premature to consider the issue, particularly since Trump could be relieved of any disability by congressional vote after the election but before taking office (I think this is the clear winner);
- Trump (as President) was not an “officer” of the United States and the Office of the President is not enumerated in Section 3;
- Section 3 is not self-executing, congress provides the remedy, and there is a congressional insurrection act under which Trump has not even been charged.
- States don’t get to decide this question, leaving open the possibility of conflicting state rulings.
That’s not a complete catalog, but the high points that jumped out at me.
Even many lefty legal observers see this as a lost cause:
Please God let this NOT be fucking happening right now.
— Elie Mystal (@ElieNYC) February 8, 2024
If I was @Redistrict I’d be at the “I’ve seen enough” phase. Trump wins 9-0.
But I’ll stay here just to make fun of these people for another hour and a half.
— Elie Mystal (@ElieNYC) February 8, 2024
I’m not sure it’s 9-0, Sotomayor may be a dissent, but it sure is looking like a strong majority if not unanimous result of SCOTUS saying: Not us, not now.
MORE TO FOLLOW
Now Kentaji Brown Jackson is destroying Colorado’s entire argument:
“They were listing people who were barred [from office under the 14th amendment] and president is not there.” pic.twitter.com/UsrvZfpqMD
— Greg Price (@greg_price11) February 8, 2024
The argument is now over. The disqualification advocates may have expected a cold reception, but this was perfectly glacial. Notably, some of the toughest and most skeptical questions came from the left of the Court.
— Jonathan Turley (@JonathanTurley) February 8, 2024
JUST IN: Supreme Court justice Brett Kavanaugh hits lead attorney Jason Murray, who is trying to keep Trump off the ballot, with a reality check.
“If you’re convicted of [an insurrection] you shall be disqualified from holding any office.”
“President Trump has not been charged… pic.twitter.com/O6VyI41iuE
— Collin Rugg (@CollinRugg) February 8, 2024
Overall take based on the oral argument: highly likely DJT wins going away. At least 6-3, more likely 8-1, possibly 9-0. They may not all agree on the same reason for it, but basically they don’t like what Colorado has done. https://t.co/wHS2JHfHeI
— Leslie McAdoo Gordon ???????? (@McAdooGordon) February 8, 2024
SCOTUS justices across the aisle — including Kagan, Thomas, and Barrett — have questioned states’ ability to disqualify federal candidates under the 14th Amendment, Section 3.
Kagan just pressed a lawyer for Trump’s challengers on the matter.
— Adam Klasfeld (@KlasfeldReports) February 8, 2024
(added)
This is just a bloodbath.
Justice Gorsuch spends two minutes slapping around Colorado’s lawyer.
You almost gotta feel bad for the guy. pic.twitter.com/SYcFJLM1EA
— Greg Price (@greg_price11) February 8, 2024
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