Supreme Court hearing on Trump, Colorado

[Pimpadeaux 2,404]

https://www.nytimes.com/2024/02/07/opinion/supreme-court-trump-section-3.html

Interesting similarities between Jan. 6 and 1860 insurrection and Civil War.

The Supreme Court will hear arguments on Thursday about whether Colorado may keep Donald Trump off the presidential ballot because of the storming of the Capitol on Jan. 6, 2021. The justices should seek a ruling that is originalist, modest and respectful of America’s democratic federalism.

In particular, they should focus on two phrases: “the first insurrection of the 1860s” and “the fifty-state solution.”

The first phrase explains why Mr. Trump’s conduct squarely falls under Section 3 of the 14th Amendment, which bars from any “office, civil or military, under the United States” any important public servant who, after swearing an oath to the Constitution, engages in an “insurrection” or gives insurrectionists “aid or comfort.”

The second phrase highlights the Constitution’s well-established structure for presidential elections, blending democracy with federalism. A 50-state solution allows each state to use its own distinct procedures and protocols for applying Section 3.

Mr. Trump’s lawyers legitimately ask what counts as a disqualifying insurrection. Section 3, they note, was clearly aimed at oath-breakers who had backed insurrections akin to the Civil War. In that calamitous insurrection, more than half a million people died. The Jan. 6 Capitol riot, they argue, pales in comparison.

But Section 3’s authors actually had not one but two recent insurrections in mind. Before the bloody insurrection that began when cannons roared at Fort Sumter in April 1861, there was the first insurrection of the 1860s, led by cabinet members of outgoing President James Buchanan, including John B. Floyd, the war secretary, and Philip Francis Thomas, the treasury secretary, among many others. A shadowy network of affiliates and co-conspirators aimed in several and nefarious ways — including mayhem, military subversion and even murder, if need be — to prevent the lawful counting of President-elect Abraham Lincoln’s electoral votes and to thwart his lawful inauguration in early March 1861.

From one angle, the first insurrection was even worse than the giant insurrection that followed. It aimed not merely to shrink the union, but to undo a legitimate presidential election for all Americans.

On Feb. 13, 1861 — the closest equivalent of Jan. 6, 2021 — Congress met to certify Lincoln’s victory. Malicious anti-Lincoln men congregated near the Capitol. But thanks to Gen. Winfield Scott’s steely defense, the Capitol held.

In some ways, the insurrection of 2021 was worse than the first insurrection of 1861. The Capitol did not fall in 1861, but it was breached in 2021.

Section 3 squarely covers oath-breaking insurrectionist presidents seeking to regain presidential power. When Americans debated Section 3 in the mid-1860s, it was widely understood that Section 3 aimed to prevent Confederate leaders like Jefferson Davis from becoming president. No prominent participant is known to have ever said that this provision somehow exempted oath-breaking presidents. Similarly, no one claimed that Section 3 somehow overlooked other leading oath-breakers seeking the presidency. Even Mr. Trump’s own lawyers appear to concede this last point in their recent filings.

 

But the question remains: Who is to decide, and using what legal procedures, whether Mr. Trump himself must answer for Jan. 6?

The Constitution provides the answer. It structures a 50-state solution in which different states may properly use different procedures and protocols, and different standards of proof, to apply Section 3. Some states, like Colorado, may carefully police ballot access even in primary elections. Others will focus more on the general ballot. Still others may wait until vote tabulation begins. Yet another cluster of states may defer to Congress as the last actor when Electoral College ballots are unsealed. In past elections, Congress has at times refused to count improper electoral votes.

Under the 50-state solution, facts as found by a state trial court in Colorado permit that state to act. But other states using different procedures are free to act differently, or not at all. What happens in Denver stays in Denver, unless other states choose to follow suit. In 1860, Lincoln was not on the ballot in every state; ditto for Ralph Nader in 2000. Welcome to the Electoral College.

But what about democracy? The first-insurrection concept reminds us that those who attack elections cannot justly complain when they are disfavored in later elections. Turnabout is fair play. And the 50-state-solution notion reminds us that Americans have never picked presidents in a single undifferentiated national contest. Eight years ago, constitutional federalism made Mr. Trump president even though Hillary Clinton won millions more votes nationally. This time around, constitutional federalism may well disfavor Mr. Trump.

An originalist first-insurrection-plus-50-state approach could appeal to the court and its individual justices for several overlapping reasons.

Start with Chief Justice John Roberts. An institutionalist by both role and temperament, he most likely aspires to achieve judicial unanimity or near-unanimity in this high-profile case. This goal will be easier to reach if the justices all steer by the same north star. The obvious focal point in this case — a case squarely about constitutional oaths — is the oath itself, which each justice takes before exercising power. It is an oath to uphold the Constitution — and thus to take Section 3 seriously, come what may.

The chief justice also believes in judicial modesty. A 50-state solution creates one of the smallest splashes possible. Each state has some leeway as a laboratory of democracy, in keeping with the teaching of Justice Louis Brandeis, one of the chief justice’s heroes.

Justice Amy Coney Barrett, another believer in judicial modesty, often votes alongside the chief justice, as does Justice Brett Kavanaugh. Were these two Trump-nominated associate justices to rule against Mr. Trump himself, they would offer America and the world a dazzling lesson in judicial independence and constitutional fidelity, reversing the damage done decades ago by the partisan lineup in Bush v. Gore.

Justice Elena Kagan might well be moved by the story of the first insurrection. She herself once worked in the executive branch under President Barack Obama. When his party lost the presidency in 2016, she watched him admirably channel Gen. Winfield Scott, ensuring a peaceful transfer of power to President Trump.

Justice Sonia Sotomayor has her own strong reasons for upholding the actions of the Colorado judges. As a former trial judge, she understands viscerally the importance of allowing trial judges to make well-supported findings of fact, as did the trial judge in this case, after allowing Mr. Trump’s attorneys ample opportunity to be heard and present evidence. Proper deference to triers of fact is one of the many virtues of the 50-state solution.

The court’s newest member, Justice Ketanji Brown Jackson, has already shown flashes of brilliance in practicing her distinctive brand of liberal originalism. A strong believer in constitutional text and enactment history, she is likely to pay close attention to the story of the first insurrection.

The remaining three justices are more conservative originalists who also care deeply about the history underlying key constitutional texts. Twenty years ago, most Americans ignored the important fact that the authors of the 14th Amendment’s first section believed in gun rights, especially for Southern Black citizens. Thanks especially to Justices Samuel Alito and Clarence Thomas, the court in recent years has heeded serious historians and read Section 1 honestly and broadly. These justices should now do the same thing for Section 3.

And Justice Neil Gorsuch (who was born in Denver) need only say again what he said as an appellate judge in 2012 in a presidential-election case arising out of Colorado. “A state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” That was the right answer in 2012, and it remains the right answer today.

The Constitution is best read to safeguard intricate federalism over pure nationalism — and the Supreme Court’s ruling should reflect that principle.

[Strike 5,214]

We needed another thread on this

[seafoam1 2,803]

 

[Tree of Knowledge 1,707]

14 minutes ago, seafoam1 said:

 

Libs will just say his ability to counsel with world leaders in the spirit world makes him an even better President than anyone else in history 

[Pimpadeaux 2,404]

18 minutes ago, Strike said:

We needed another thread on this

It's mentioned in other threads, but I think today's events and this take on it warrant a separate thread.

So take that  and apply it to the myriad tranny threads.

[The Real timschochet 6,443]

They’re spending a lot of time on the whole “officer” thing. Seems kind of a lame argument to me (the President is exempt from the 14th Amendment because he is not an officer). But I am not a legal scholar..:

[Hardcore troubadour 14,951]

Biden also said he spoke with Otto Von Bismarck about climate change. 

[Pimpadeaux 2,404]

6 minutes ago, The Real timschochet said:

They’re spending a lot of time on the whole “officer” thing. Seems kind of a lame argument to me (the President is exempt from the 14th Amendment because he is not an officer). But I am not a legal scholar..:

It's a fascinating case on myriad levels. I wasn't aware of the whole 1860 thing. 

[TheNewGirl 1,353]

46 minutes ago, Strike said:

We needed another thread on this

When I heard about this yesterday on the news, I was wondering which of our TDS sufferers would post about it. 

 

[TBayXXXVII 2,485]

3 minutes ago, TheNewGirl said:

When I heard about this yesterday on the news, I was wondering which of our TDS sufferers would post about it. 

 

It's always Rusty.

[Pimpadeaux 2,404]

2 minutes ago, TheNewGirl said:

When I heard about this yesterday on the news, I was wondering which of our TDS sufferers would post about it. 

 

Seriously?

This is a huge Supreme Court decision, and you label a discussion of it as TDS?

Come on. You're more intelligent than this.

 

[TheNewGirl 1,353]

1 minute ago, Pimpadeaux said:

Seriously?

This is a huge Supreme Court decision, and you label a discussion of it as TDS?

Come on. You're more intelligent than this.

 

Not the discussion; the need to create a new thread. 

[Pimpadeaux 2,404]

2 minutes ago, TBayXXXVII said:

It's always Rusty.

Yeah, I love a good discussion over how the Supreme Court will interpret this in regard to the Constitution. 

I've offered no opinions on this other than leaning that Trump needs to remain on the ballot, because otherwise states might move to pull Biden off ballots using their own Constitution interpretations, such as this immigrant "invasion."

[Pimpadeaux 2,404]

Just now, TheNewGirl said:

Not the discussion; the need to create a new thread. 

So feel free to ignore and let the adults discuss it. Go find another thread in which to be crabby.

[Baker Boy 1,688]

Bottom line: If removing Trump from the ballot is allowed it will be the end of Democracy as we know it.

We will no longer be a government "for the people by the people"

 

[iam90sbaby 2,492]

Lefties are big time losers.

[thegeneral 2,915]

How about they finish this up and get to this bullshet immunity argument / delay tactic next week. 

[squistion 1,955]

Just now, Pimpadeaux said:

So feel free to ignore and let the adults discuss it. Go find another thread in which to be crabby.

You notice they never complain about someone starting yet another trans bashing thread, but don't want to see a thread on what historically may be one of the most important SCOTUS decisions ever. 

[Strike 5,214]

2 minutes ago, Pimpadeaux said:

So feel free to ignore and let the adults discuss it. Go find another thread in which to be crabby.

1). There is already a dedicated thread on the CO case.  Could have just continued there.

2). You constantly derail threads.  You're the last time one who should be whining about anyone posting about anything in this thread.  You have admitted to purposely derailing other threads RustyTroll.

[The Real timschochet 6,443]

2 minutes ago, Baker Boy said:

Bottom line: If removing Trump from the ballot is allowed it will be the end of Democracy as we know it.

We will no longer be a government "for the people by the people"

 

That’s not a good argument. If Trump were under 35, or running for a third term, or not born in the USA, he would not be on the ballot, and democracy would not be harmed. 
 

What is a good argument is that Trump has not received due process. I don’t think a court can simply determine that he is guilty of insurrection without some sort of trial. 

[Hardcore troubadour 14,951]

5 minutes ago, Pimpadeaux said:

So feel free to ignore and let the adults discuss it. Go find another thread in which to be crabby.

And if it doesn’t go your way you’ll just say conservative court blah blah. That’s the extent of your “adult” discussion.  You’re a fairly simple clown to figure out.  

[Pimpadeaux 2,404]

1 minute ago, squistion said:

You notice they never complain about someone starting yet another trans bashing thread, but don't want to see a thread on what historically may be one of the most important SCOTUS decisions ever. 

No kidding. My point entirely. I don't start many threads, and when I do they often reach 40-plus pages in no time, other than the short-lived goofs.

 

[The Real timschochet 6,443]

Just now, Strike said:

1). There is already a dedicated thread on the CO case.  Could have just continued there.

2). You constantly derail threads.  You're the last time one who should be whining about anyone posting about anything in this thread.  You have admitted to purposely derailing other threads RustyTroll.

You spend so much time on this crap. Ripping people for starting threads. Who cares if there is a dozen threads on this topic? How about discussing the topic? And if you don’t care to discuss it then why post? All you do is whine and complain, so annoying. 

[Fnord 2,051]

9 minutes ago, Baker Boy said:

Bottom line: If removing Trump from the ballot is allowed it will be the end of Democracy as we know it.

We will no longer be a government "for the people by the people"

 

Is it possible that perhaps judges and attorneys working on these issues across the country MIGHT know a bit more about contextualization and implementation of the law than those of us speculating and arguing about it?

Republicans always tout themselves as the RULE OF LAW party. What we're seeing now is the rule of law in action. Just because some don't like it doesn't mean it's not legal and appropriate. Our opinions don't mean shlt. The law professionals know more than us. If we are to be a nation of laws, you can't toss them aside because you don't like the outcome. This is a disturbing development amongst the MAGA crowd, who will immediately blame ANYONE other than Trump for all the legal troubles he has. It will lead to violence.

[Pimpadeaux 2,404]

2 minutes ago, Strike said:

1). There is already a dedicated thread on the CO case.  Could have just continued there.

2). You constantly derail threads.  You're the last time one who should be whining about anyone posting about anything in this thread.  You have admitted to purposely derailing other threads RustyTroll.

Since when has thread derailment suddenly become a shocking development for you here?

[Pimpadeaux 2,404]

3 minutes ago, The Real timschochet said:

You spend so much time on this crap. Ripping people for starting threads. Who cares if there is a dozen threads on this topic? How about discussing the topic? And if you don’t care to discuss it then why post? All you do is whine and complain, so annoying. 

The irony is that he derails threads by b!tching about thread derailment.

I didn't see a specific thread on today's Supreme Court hearing anywhere on the front page.

[weepaws 3,157]

Be great if they vote to leave of all candidates.  

[Horseman 2,369]

You're an idiot if you don't already know how they are going to rule.  This is more dead than the border bill was.  Circus politics of the left.  

[Baker Boy 1,688]

8 minutes ago, Pimpadeaux said:

Since when has thread derailment suddenly become a shocking development for you here?

Since you showed up and derailed every thread you don’t agree with.

[squistion 1,955]

 

[Pimpadeaux 2,404]

7 minutes ago, Baker Boy said:

Since you showed up and derailed every thread you don’t agree with.

You're just projecting, not to mention classifying an opposing view in a discussion on a single topic as a derailment.

It's not a thread derailment because a topic draws varying and opposing opinions and doesn't fall in line with the MAGAturd menstrual cycle.

It is thread derailment when you clowns roll in the summer 2020 riots to derail a Jan. 6 discussion.

It is a thread derailment when you clowns roll in your so-called "wide open border" and immigration in a Ukraine discussion.

The thread-derailing MAGAturd whataboutism can be found in just about every thread around here.

But I'm glad my opposing views get under your skin.

 

[thegeneral 2,915]

16 minutes ago, Pimpadeaux said:

You're just projecting, not to mention classifying an opposing view in a discussion on a single topic as a derailment.

It's not a thread derailment because a topic draws varying and opposing opinions and doesn't fall in line with the MAGAturd menstrual cycle.

It is thread derailment when you clowns roll in the summer 2020 riots to derail a Jan. 6 discussion.

It is a thread derailment when you clowns roll in your so-called "wide open border" and immigration in a Ukraine discussion.

The thread-derailing MAGAturd whataboutism can be found in just about every thread around here.

But I'm glad my opposing views get under your skin.

 

This is all accurate.

[Strike 5,214]

41 minutes ago, The Real timschochet said:

You spend so much time on this crap. Ripping people for starting threads. Who cares if there is a dozen threads on this topic? How about discussing the topic? And if you don’t care to discuss it then why post? All you do is whine and complain, so annoying. 

Link to me ripping people for starting threads?

[Horseman 2,369]

51 minutes ago, squistion said:

 

POTUS isn't a state office dumbasss.  

[TheNewGirl 1,353]

1 hour ago, squistion said:

You notice they never complain about someone starting yet another trans bashing thread, but don't want to see a thread on what historically may be one of the most important SCOTUS decisions ever. 

This isn't true. I complain about the number of transsexual threads all the time. 

[TheNewGirl 1,353]

I think that the SCOTUS needs to be very careful how they vote on this and think about how it can affect future elections for all offices. 

There, that's my feeling on the OP. 

 

[squistion 1,955]

11 minutes ago, Horseman said:

POTUS isn't a state office dumbasss.  

He didn't say or infer that it was, my so learned and so intelligent friend. 

[Strike 5,214]

Just now, TheNewGirl said:

I think that the SCOTUS needs to be very careful how they vote on this and think about how it can affect future elections for all offices. 

There, that's my feeling on the OP. 

 

They're going to b*tch slap Colorado.  Even Kagan's comments during the hearing suggest this, and she's one of the far lefties on the court.  Just because a case gets to the SCOTUS doesn't mean the case has serious merit.

[TheNewGirl 1,353]

4 minutes ago, Strike said:

They're going to b*tch slap Colorado.  Even Kagan's comments during the hearing suggest this, and she's one of the far lefties on the court.  Just because a case gets to the SCOTUS doesn't mean the case has serious merit.

I agree. 

 

[The Real timschochet 6,443]

5 minutes ago, Strike said:

They're going to b*tch slap Colorado.  Even Kagan's comments during the hearing suggest this, and she's one of the far lefties on the court.  Just because a case gets to the SCOTUS doesn't mean the case has serious merit.

This is correct. It will be a 7-2 or 8-1 decision, perhaps unanimous. But they will avoid discussing whether or not Trump committed or aided insurrection.