Assuming that the announcement from the Supreme Court today is a ruling in the Colorado 14th Amendment insurrection case, this seems like it will be very helpful as we look to understand what it says and what it means.
Update: Supreme Court ruling (per curium) Which means that all justices are concerting on this opinion.
I’ll update with specifics after the announcement, but in the meantime, something to think about.
When the Supreme Court Rules on Colorado’s Ballot, Pay Attention to What It Doesn’t Say (Slate)
Excerpt
When the Supreme Court issues its opinion in the ballot access case, therefore, smart court watchers will be looking for not only the legal bottom line on whether Trump can stay on the ballot, but also what signal the court sends the public about Trump’s underlying conduct. Because pending before it is a case in which the Colorado courts expressly found that Trump did engage in an insurrection. In fact, every entity that has ruled on the merits of that question—from the Colorado courts, to the Maine Secretary of State, to now the Illinois judiciary, to the findings of the January 6 Commission and the House impeachment inquiry—have so agreed. Will the Court reject all those conclusions? Will the Court take this opportunity to absolve Trump of insurrection? If the Court declines to do that, it will speak more loudly than whatever it formally holds on the technical legal arcana it seems likely to focus on in its opinion.
That doesn’t mean everyone will hear it. If history is any guide, one likely reaction from the press will be a host of “Trump exculpated!” stories, in much the same way the Mueller Report was treated as a blanket exoneration. It’s a forgivable error. Technical legal arcana is technical and arcane and “Trump exculpated!” is journalistic dopamine. But that doesn’t mean reporters should knock over the proverbial phone booths in rushing, en masse to announce that Trump has “won” or “lost” the case once the opinion is released. Journalism focused on the horserace and not the stakes will be unlikely to capture the fact that the court may not dispute Trump’s participation in an insurrection when presented with the chance to do so, although that latter is the headline as well as a fact more relevant to the things voters will need to weigh come November. To our minds, “Court rules Trump can remain on ballot, Declines to absolve him of Insurrection” feels like a more accurate framing of the actual stakes of the Colorado case, assuming the case goes how we anticipate.
h/t Mousebumples for the article
Open thread.
TBone
It’s here. 9-0. States’ rights in administering each election is gone
Baud
@TBone:
Probably doesn’t excuse him for the insurrection then. Some legalistic decision.
WaterGirl
@Baud: Link to the ruling. is now up top.
Baud
Only Congress can enforce section 3.
fancycwabs
As much as I don’t like Trump on the ballot, that’s the right call.
Section 5 of the 14th Amendment says very specifically that Congress was supposed to pass laws to keep insurrectionists off the ballot, and Congress, like usual, didn’t do their fucking job.
WaterGirl
Marcopolo
As someone who follows & loves Elie Mystal, at least nothing SCOTUS does surprises me anymore. Also, fuck the Supreme Court!
WaterGirl
Baud
States should be in the business of disqualifying potential Democratic voters instead. #GOP6
RaflW
@fancycwabs: “Congress was supposed to pass laws to keep insurrectionists off the ballot, and
CongressRepublicans, like usual, didn’t do their fucking job.”Or, one can argue, Republicans did their partisan job, but not the job the constitution & framers imagined. And really, in all this, f*ck Mitch McConnell.
WaterGirl
Dorothy A. Winsor
@fancycwabs: I don’t object to the call as much as I’m annoyed by the speed with which it was reached compared to the speed in deciding the immunity case.
CaseyL
Oh, ffs. The word “tradition” has been wielded again in the decision. SCOTUS saying “Nothing new can be done,” again (nicely eliding the fact that no US President has previously incited an insurrection).
The good thing about this is that Red states can’t toss Democrats off their ballots. That’s no small thing, because many Red states had already threatened to do just that.
WaterGirl
Baud
@WaterGirl:
The libs object to the GOP justices deciding that conviction in court is not enough to disqualify Trump.
ETA: They cite Breyer in Bush v. Gore!
Miss Bianca
Jesus, these assholes. You don’t think that maybe, just maybe, they could have rendered a fucking decision on this a little sooner than *the literal day before* Colorado’s presidential primary election date? To say nothing of the fact that early and mail-in voting means people have *been* voting for days already, if not weeks!
So, what if they *do* decide to side with the CO Supreme Court decision? What, you’re just going to say to CO GOP voters, “Oops! We just retroactively invalidated your votes! Hey, sorry about that!”
Not that I would have a *problem* with that scenario, necessarily, you understand…it’s just the principle of the thing
ETA: Well, apparently they ruled against the CO Supreme Court decision, so my objections are moot. But still. Way to go, SCOTUS, you fuckers.
Leto
Another day ending in -y.
Eolirin
@Baud: Well, as much as leaving that on the table would be ideal, it’s kind of moot to Trump specifically being on the ballot given the court’s delay of the Jan 6th trial.
Baud
@Eolirin:
Probably so.
Barrett seems to agree with the libs but is concerned they are shrill.
Eolirin
@Baud: And also let’s be honest here, the next Trump like Republican that wins the white house is going to end democracy with the complete support of Republicans in congress, and if a Democrat tries to do an insurrection they’ll be impeached successfully and congress will absolutely disqualify them. So it’s not like it’s ever going to matter in practice.
Suzanne
@RaflW:
Rotating tag. But insert the u.
Baud
States can’t disqualify Cenk Uygur for not being born here!
TBone
Of a certain TV commentator, it has been said “Remember, his biggest goal in his TV appearance is not to piss off the court, since appearing before them is really where he makes his living. Arguing that child slavery is okay, for instance.”
Mousebumples
Not a huge surprise. The delays in everything with the immunity case pending USSC review is Not Great, but who knows.
I’m going to keep supporting Biden/Harris and work to GOTV with postcards.
Brachiator
@TBone:
Not quite. The Court is saying that only Congress can use the 14th Amendment test.
schrodingers_cat
There is no magic bullet, the Orange Ogre has to be defeated at the polls.
Eolirin
Legal folk, does this ruling also apply to members of congress?
Bupalos
@fancycwabs: This is incorrect.
WaterGirl
We can only hope:
Omnes Omnibus
@TBone: Prenez un grip.
TBone
This is my prayer, I plead:
🎶 m.youtube.com/watch?v=5xqiu0ekahw
Omnes Omnibus
What the mouse said.
Mike in NC
This is the court that Moscow Mitch and Fat Bastard gave us. They will never rule in favor of the people. Fuck ’em.
Another Scott
I was suspicious of the reasoning in the public testimony, even by people on our side, that seemed to be of the opinion that a state enforcing its own rules about ballot access was somehow denying the country as a whole the right to choose a president. Yeah, it could be weaponized by monsters, but we’ve seen that monsters can weaponize anything.
The 14th Amendment was drafted by the Joint Committee on Reconstruction. Their report is here (836 pages of scans from 1866). I haven’t skimmed it. I would assume that if they thought that enabling federal legislation was required there would be some discussion about it. Scans of the Congressional Globe exist of the public debate in the House and Senate as well.
Whatever the question, the SCOTUS won’t save us. There’s no One Weird Trick. We have to vote the monsters out of office, and have a large enough majority to make the long overdue changes to our system to keep the monsters (elected and unelected) from breaking our government.
Cheers,
Scott.
Ryan
So, what’s the deal here? Trump wins the general, and then, what, Trump has to prove he didn’t insurrect in order to serve?
Bupalos
Barrett’s thing is kind of hilarious.
“Look, the majority shouldn’t be extending this past the federalism question to article 5 enforcement. But since they did, let’s all calm down and ignore that they did, because it would be better if everyone just calmed down and looked away.”
TBone
@Omnes Omnibus: my comment in the previous thread said I’m keeping my head down and going about my daily business as per usual. It’s a busy day around these parts IRL.
Mousebumples
@Omnes Omnibus: ❤️
Happy to be on the nose down, do the work team.
Baud
@Eolirin:
Yes, I think so.
John S.
@Ryan::
It’s up to Congress to act in accordance with Section 3. If they fail to act, who is going to hold them to account? Nobody.
Josie
@Mousebumples:
Yes
Frankensteinbeck
I expected this would be 9-0. Even the liberals on the court would want to set a high bar to disqualification. I’m not a lawyer, so I wasn’t sure, but yeah, this seemed the likeliest result. I don’t see it affecting the election, since the states that would disqualify Trump are the states he was never going to win.
Waspuppet
@CaseyL: They’ll find a way if they want to.
But they will. Because Trump “won.” When he loses, they are very careful.
It’s also hard not to notice the court can take into account the importance of a timely decision to the electoral calendar when they want to.
Bupalos
@Ryan: Looks to me like the conservatives extended the question at hand to reverse the plain language of article 5 and put the heavier political lift on those trying to deny an insurrectionist office than on those trying to allow an exception. Trump should have needed a 2/3rds vote to take office, this reverses that to congress having to specifically vote that he can’t take office.
RaflW
@Baud: “They cite Breyer in Bush v. Gore!”
Oh! That’s bitterly hilarious. They cite the case that the Supreme R’s say isn’t precedent.
gvg
The reasoning for not having states make different decisions for federal offices seems OK. the idea Congress has to deal with it seems problematic, especially this Congress. it says Congress can remove the disability, but what if they won’t? What if the person has committed rebellion? Who says he can’t be inaugurated and what is the process?
Omnes Omnibus
In other legal news: Weisselberg pleaded guilty to perjury. His plea agreement is supposed to include an agreement to cooperate. This is not good news for Trump.
Jackie
@schrodingers_cat:
Yup. Removing TIFG from the ballot would just give MAGAts another reason to revolt while screaming the election was RIGGED! And STOLEN!!!
So we have to do our part and give TIFG a decisive loss via our votes!
John S.
@Waspuppet:
Normally I would agree, but it doesn’t appear to be going that way just yet. Here’s a random sampling.
CNN: Supreme Court keeps Trump on Colorado ballot
AP News: Supreme Court restores Trump to ballot
The Guardian: US supreme court ruling allows Trump to stay on primary ballots nationwide
Looks like it’s being framed as the SCOTUS is a friend to Trump. Which should really help to further crater public opinion about an institution that’s already in the toilet.
hrprogressive
While the idea of Trump being DQ’ed via the 14th Amendment was always a bit of a reach, a ruling like this also means that all those fascist states can’t just decide “Well, fine, we’re going to DQ the Democrat because Reasons”.
Does that mean it was a “good” decision? Not necessarily, because a number of folks have argued about the “self-executing nature” of Section 3.
The Court here appears to be saying “Section 3 applies to him, and we’re not exonerating him by saying he didn’t commit an insurrection, but because Section 5 says Congress has to enforce Section 3, and because Congress hasn’t enforced Section 3, there’s no merit to the states claiming Section 3 applies here, so, tough shit basically”.
I know this isn’t going to make a lot of people happy but I have to be honest I never, ever, thought the 14th was going to be the reason Trump doesn’t get back in the White House again.
Feel how you feel about it, and continue to work on educating the public about the dangers of a Fascist States of America and continue to work towards re-electing as many Democrats as possible while reasonably free and reasonably fair elections are still possible.
Jackie
@WaterGirl: Too bad it didn’t include “currently citizen” in addition to “former.”
UncleEbeneezer
I’m not outraged by this. We need to beat Trump at the polls and I’d rather have him lose CO fair and square.
sdhays
@Omnes Omnibus: But it’s excellent news for John McCain!
(Sorry, couldn’t resist.)
RaflW
@John S.: There could be a barn-door-after-the-horse-trampled-the-constitution effort to vote the intransigent Republicans out in 2026.
But, it’s not that clear that we’ll have elections in 2026 if Dotard is PresiRegent. Or they’ll be even more of a sham than the current gerrymandered non-contests we have for about 392 current House seats.
The Scotus suddenly re-locates ‘history’ but of course ignores that the Founders wouldn’t have anticipated House members sitting on their electoral franchises for unbudgeable decades.
Baud
@John S.:
Those seem like pretty neutral headlines. I can’t complain.
Lyrebird
@Baud: @WaterGirl: Thanks for the news and the link! Let’s let Justices Sotomayor Kagan and Brown be heard:
sdhays
@hrprogressive: I personally had a problem with the state itself deciding that someone was an insurrectionist. It seemed to me that that question should be decided by a Federal court. It sounds like the liberal justices also thought that.
dr. bloor
@hrprogressive: Second this. There’s little doubt the remaining three justices with integrity would like to see Trump fall off the face of the Earth, but this would have opened a dangerous can of worms.
UncleEbeneezer
@hrprogressive: This is where I am too. When CO ruling first came out my first thought was “this will never fly with SCOTUS.” The fact that Kagan, Sotomayor and Jackson all signed-on, reassures me that it isn’t just naked Trump-humping by the Court.
Mousebumples
(don’t live in Colorado, not a lawyer, but I’d be amused by that timeline)
Another Scott
@Another Scott:
I found a few minues. This seems relevant:
(Emphasis added.)
I still don’t see how the SCOTUS can casually throw out part of Colorado’s Constitution and rules on this, but the framers of the 14th explicitly said that the US Congress has the power of enabling legislation.
FWIW.
Cheers,
Scott.
RaflW
@Baud: Amy Karen Barrett taking the opportunity to tone police the three other women on the Court.
rikyrah
@schrodingers_cat:
We are who will save this country
Eyeroller
@RaflW: Gerrymandering is named for Elbridge Gerry, one of those Founding Fathers. So it was invented almost immediately. In fairness to Gerry, the districts were drawn by a state legislature (Massachusetts) when he was governor, and he was supposedly not entirely happy about it, but he signed the bill anyway. He was, however, quite partisan in other regards.
akita
Amy Coney Barrett:
In other words, you plebes should show us the same deference for this 9-0 as is shown toward Brown v Board of Education since they are moral equivalents.
Jackie
I like this take from Neal Katyal and Andrew Weissmann on MSNBC:
Much more explanation/opinions at the link:
rawstory.com/trump-14th-amendment-legal-analysts/
rikyrah
@RaflW:
But, of course 😡
Matt McIrvin
They decided it as a state vs. Federal power issue. I can’t get too outraged about that.
Omnes Omnibus
@Matt McIrvin: You could if you tried harder, you piker.
Another Scott
@Jackie: AFAIK, courts of appeals like the SCOTUS never (unless they’re acting under their “original jurisdiction” (or whatever the term is) playing field) rule on the facts. They’re not “tryers of fact”. They rule on whether the law was correctly applied to the facts found by the lower courts.
I’m kinda surprised that Katyal and others are talking like that’s a big deal.
IANAL.
Cheers,
Scott.
brantl
@Mike in NC: The liberal justices voted with them TOO. 9-0.
H.E.Wolf
The wolf concurs. And has 5 postcards to write.
I’m subverting from within: writing to FL to sign up Democrats for FL Vote By Mail. It’s like being in a heist movie! I’m the quiet one that you don’t want to piss off. :)
New Deal democrat
@Another Scott:
As someone who long long ago in a galaxy far far away read the entirety of the Congressional debates on the 14th Amendment, a few comments.
Yes, the original Constitution clearly says States run the Presidential election.
But the whole 14th Amendment is about displacing State authority and giving it to the Federal government in the areas defined.
One of those areas so defined is the Insurrection clause.
There were many cases where Congress decided on whether candidates for the House or Senate were disqualified or not. This was done under their right to determine the disqualifications of their own members.
This is the first time in history that the candidate involved was not running for the House or Senate, but rather the Presidency.
So I am not surprised that the Court unanimously, including the liberal Justices, decided that the issue must be resolved on a Federal, not State by State, basis.
Hoodie
@Jackie: They specifically wanted to avoid that issue. There are good reasons to do so because there really isn’t any federal framework for conducting a factfinding for insurrection other than 18 USC 2383. An interesting question that does not seem to be answered by the opinion is whether a state could pre-emptively remove someone from the ballot because of a conviction under that statute. That statute says that such a person cannot hold a federal office, but does that mean that a state could use that as a basis for keeping someone off the ballot? They seemed to imply that it could, but it’s not entirely clear.
The basis they used for reversing the COSC was pretty much what I expected, but that does not mean that the interpretation the COSC made was literally wrong. One of problems with statutory and constitutional interpretation is that there isn’t necessarily one “literal” interpretation. The COSC was not out of bounds in reading the 14th Amendment the way they did, e.g., they didn’t interpret in a way that directly contradicted the wording. Statutes and constitutional provisions can be poorly worded (think 2nd Amendment) and, even if fairly well written, can still be ambiguous because context gets imported into any written work.
Spc
@fancycwabs: Ywah. Another angle would have been the necessity of some sort of conviction – either by Congress or a federal court. Otherwise Biden could be removed in say, Georgia, for “reasons.”
wjca
That amendment is a century and a half old. It’s seriously simplistic to blame the current Congress for the lack of enabling legislation.
Their predecessors clearly deserve equal blame. Especially since the need was apparently so obvious as to get unanimous support from the Justices.
TBone
What happened to the qualification standard (requirement, like being 35 y.o. age) that Luttig insisted was simple, plain language?
“Ultimately, this lawsuit reached the Colorado Supreme Court, which ruled that Trump would be disqualified from the 2024 ballot. Specifically, the Colorado Supreme Court found that the office of the president does fall under the requirements of section three, and thus applies to Trump because he previously held office as president, that Trump did engage in an insurrection on Jan. 6, and that Trump’s speech that day was not protected by the First Amendment to the US Constitution, which protects free speech.
The much-contested standard the Colorado Supreme Court laid out for what constitutes an insurrection was a “concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”
jurist.org/features/2024/02/06/explainer-whats-at-stake-in-the-us-supreme-courts-hearing-on-trumps-b…
I haven’t seen any discussion of that yet, which is why I’m perplexed. The question before the Court mooted it? I’ve been distracted by a few things occurring simultaneously IRL and haven’t caught up.
TBone
@TBone: never mind 🤬
Paul in KY
@WaterGirl: What is the de-al with the ran-dom dashes in the dec-ision?
Albatrossity
Another Scott
@Paul in KY: PDF word wrapping.
It would be really nice if the various clipboards and text entry fields were smarter about cut-and-paste from PDFs. But, like printing on Windows, we’ll probably have to suffer with it for 30 years or so whether we like it or not… :-/
Cheers,
Scott.
WaterGirl
@Paul in KY: Remember in the olden days that people would split a word between two lines because of spacing or whatever it was?
The SC must use some old-fashioned technology or something. Hard-coded which probably looked right in their document, but doesn’t when copied and the wrapping is different
edit: I see that Another Scott got their first.
TBone
@TBone: Marc Elias’s email/ opinion talks about the same focus (administration) and he shares my opinion of today’s ruling. His substack recently became for paid subscribers but he sent a free email (can’t copy pasta successfully here).
anitamargarita
@wjca: it doesn’t seem clear to me that ennobling legislation is needed.
Tim in SF
@TBone: “It’s here. 9-0. States’ rights in administering each election is gone”
That’s the bad news. The good news is that this may clear the way for national election standards at some point down the road.
wjca
@anitamargarita: it doesn’t seem clear to me that ennobling legislation is needed.
No legislation, no act of man or of God Himself, could ennoble TIFG. Although, to be fair, I suppose the devil could make him a prince of hell — but Satan has better taste, and probably little use for a (by then failed) con man.
Paul in KY
@Another Scott: And WaterGirl, thank you for the explanation!