Tuesday, March 5, 2024

Something to Know - 5 March

The political ramifications of the Supremes' ruling on Colorado's move to remove Trump from the state's ballot is mostly based on political interests.   The decision seemed to not want to touch the issue of insurrection, and splintered off in dissent in different ways.  Some went off in seeking to protect the court from future possibilities on the ruling on Trump's menu of 91 indictments, and others on the ability of one state to affect a federal election.   Looks like the real issue will boil down in the future on a president's ability to have unlimited immunity up to and including not being accountable for ordering a murder.   I think that in this circus someone should try and enact an amendment that prohibits anyone who is a horrible and dangerous person from being president, or any other elected office.   If we are going to be ridiculous, we might as well go all the way.

Heather Cox Richardson from Letters from an American heathercoxrichardson@substack.com 

to me

Today the Supreme Court ruled unanimously that states cannot remove Donald Trump from the 2024 presidential ballot. Colorado officials, as well as officials from other states, had challenged Trump's ability to run for the presidency, noting that the third section of the Fourteenth Amendment prohibits those who have engaged in insurrection after taking an oath to support the Constitution from holding office. The court concluded that the Fourteenth Amendment leaves the question of enforcing the Fourteenth Amendment up to Congress. 

But the court didn't stop there. It sidestepped the question of whether the events of January 6, 2021, were an insurrection, declining to reverse Colorado's finding that Trump was an insurrectionist.

In those decisions, the court was unanimous.

But then five of the justices cast themselves off from the other four. Those five went on to "decide novel constitutional questions to insulate this Court and petitioner from future controversy," as the three dissenting liberal judges put it. The five described what they believed could disqualify from office someone who had participated in an insurrection: a specific type of legislation.

Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson in one concurrence, and Justice Amy Coney Barrett in another, note that the majority went beyond what was necessary in this expansion of its decision. "By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office," Kagan, Sotomayor, and Jackson wrote. Seeming to criticize those three of her colleagues as much as the majority, Barrett wrote: "This is not the time to amplify disagreement with stridency…. [W]ritings on the Court should turn the national temperature down, not up." 

Conservative judge J. Michael Luttig wrote that "in the course of unnecessarily deciding all of these questions when they were not even presented by the case, the five-Justice majority effectively decided not only that the former president will never be subject to disqualification, but that no person who ever engages in an insurrection against the Constitution of the United States in the future will be disqualified under the Fourteenth Amendment's Disqualification Clause."

Justice Clarence Thomas, whose wife, Ginni, participated in the attempt to overturn the results of the 2020 presidential election, notably did not recuse himself from participating in the case.

There is, perhaps, a larger story behind the majority's musings on future congressional actions. Its decision to go beyond what was required to decide a specific question and suggest the boundaries of future legislation pushed it from judicial review into the realm of lawmaking. 

For years now, Republicans, especially Republican senators who have turned the previously rarely-used filibuster into a common tool, have stopped Congress from making laws and have instead thrown decision-making to the courts.

Two days ago, in Slate, legal analyst Mark Joseph Stern noted that when Mitch McConnell (R-KY) was Senate majority leader, he "realized you don't need to win elections to enact Republican policy. You don't need to change hearts and minds. You don't need to push ballot initiatives or win over the views of the people. All you have to do is stack the courts. You only need 51 votes in the Senate to stack the courts with far-right partisan activists…[a]nd they will enact Republican policies under the guise of judicial review, policies that could never pass through the democratic process. And those policies will be bulletproof, because they will be called 'law.'"




Law Dork
Donald Trump will remain on the ballot in Colorado's Republican primary on Tuesday, the U.S. Supreme Court ruled unanimously on Monday, reversing the Colorado Supreme Court's decision to the contrary. In December 2023, the Colorado court had ruled that Trump could not appear on the ballot because he had engaged in insurrection in connection with his actions related to January 6, 2021, disqualifying him from being president under Section 3 of the Fourteenth Amendment and barring him from appearing on the Colorado primary ballot under state law…
15 hours ago · 131 likes · 35 comments · Chris Geidner


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