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Hieronymous Alloy posted:Specifically, correct me if I'm wrong, but I believe the "political considerations" you're talking about are that the 13th amendment functionally barred almost all white men in the South from political office, so the alternatives were "Allow black people to hold office like equals" or "chaos government" and America was still far too racist, even in the North, to prefer option A. The political considerations were basically that with organized politics in the South still in tatters following the war, it became very attractive for Northern political factions to compete for Southern votes and politically collaborate with moderate Southerners in order to build their own power and sideline the other Northern political factions. Although the Southerners were still politically weak immediately after they regained the ability to vote, many Northern politicians thought that Southern support could be the decisive boost that could push their faction to the top. It's no coincidence that the Amnesty Act was introduced and passed in an election year, just weeks after the moderate anti-Reconstruction Republicans had split off into a separate party to challenge the Republican incumbent. The moderate Republicans who'd been sidelined by the Radicals were sure that Southern support would help put the Liberal Republicans in charge and shove the Radicals to the side. In turn, Grant and his Radical allies thought this was enough of a threat that they adopted many Liberal measures themselves, including amnesty for most ex-Confederates. Although the Greely campaign in 1872 ultimately turned out to pose little threat to Grant, the breakdown of Republican unity and the restoration of the most Confederates' political rights set the stage for the recovery of Democratic power and the end of Reconstruction just a few years later. It didn't matter that the Civil War had killed more than a quarter million Union soldiers and tens of thousands of Union civilians. As soon as the Southern states got their voting rights and Senate seats back, their political support was valuable enough that the Northerners were happy to forget their crimes so quickly that nearly all Insurrection Clause prosecutions were rendered moot before they could even reach a ruling. Murgos posted:The constitution expressly grants the power to choose electors however they wish to each state to enact individually. It’s a pretty easy lift IMO to say, “the states always had the power to decide who meets or doesn’t meet the constitutional requirements.” Particularly as states each independently already make the decision on who gets to be on the federal presidential ballot. What the states do doesn't matter here. Electors can't vote for someone who's ineligible, and if they do, their votes will be invalid and ignored by the federal government. States can put Mickey Mouse on the ballot if they want to, but if their electors send Congress a slate of Mickey Mouse votes, Congress is going to file that slate into the trash can. Main Paineframe fucked around with this message at 00:26 on Jan 1, 2024 |
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Also, didn't the political base of the south suddenly become even more powerful in the house due to people who were before considered 60 percent of a person for the purposes of apportionment suddenly worth 100 percent? Didn't the south gain 40 percent more congressmen and electoral votes?
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Jan 1, 2024 00:41
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Cimber posted:Also, didn't the political base of the south suddenly become even more powerful in the house due to people who were before considered 60 percent of a person for the purposes of apportionment suddenly worth 100 percent? Didn't the south gain 40 percent more congressmen and electoral votes? quote:After the Reconstruction Era came to an end in 1877, the former slave states subverted the objective of these changes by using terrorism and other illegal tactics to disenfranchise their black citizens, while obtaining the benefit of apportionment of representatives on the basis of the total populations. These measures effectively gave white Southerners even greater voting power than they had in the antebellum era, inflating the number of Southern Democrats in the House of Representatives as well as the number of votes they could exercise in the Electoral College in the election of the president.[26] Oracle fucked around with this message at 01:17 on Jan 1, 2024 |
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Jan 1, 2024 01:10
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I've been thinking that the Supreme Court ruling that States can decide whether or not to kick someone off the ballot under the 14th might be their best option. It actually helps their dismal reputation while also being unlikely to actually change any outcome. Obviously it makes Trump winning by one vote unlikely due to Main's distribution of EC votes, but are there any actual swing states that are going to kick him off the ballot? It'll result in some real fun issues with the popular vote, and possibly some comical down ballot issues in the states that kick Trump off. However, if it doesn't actually change the Electoral College math significantly there's not much of a downside to upholding Colorado and watching ensuing show. It would certainly give the primaries a shot of resulting in a "palatable" candidate with actual good odds of winning.
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Jan 1, 2024 12:09
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Gyges posted:I've been thinking that the Supreme Court ruling that States can decide whether or not to kick someone off the ballot under the 14th might be their best option. It actually helps their dismal reputation while also being unlikely to actually change any outcome. Obviously it makes Trump winning by one vote unlikely due to Main's distribution of EC votes, but are there any actual swing states that are going to kick him off the ballot? If the SC decides it as states rights we're just gonna see every blue state kick the republican off the ballot and every red state kick the democrat off the ballot until it gets re-litigated and undone.
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Jan 1, 2024 12:21
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As long as they limit it to reasonable latitude in determining participation in an insurrection it will be fine. Alabama or some such state will try and kick Biden off for some insane tale of trying to sell out 'Merica to Soviet Chechoslovakia, and as long as some sort of limitation is included in the ruling it'll be overturned. The entire reason that the 14th is "One Weird Trick" is because Trump actually was involved in an insurrection. Deciding not to hold him accountable because his fascist acolyte will do something stupid isn't very persuasive to either side. Worst comes to worst, Trump and Biden are only both on the ballot in the handful of states where either one of them might conceivably win anyway. Then America enters yet another "dumbest thing we've done" into the giant Tome of America Being Stupid held in the Library of Congress.
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Jan 1, 2024 13:53
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I'm law dumb, so going entirely off tummyfeels. Trying to "state's rights" your way out of a constitutional amendment about the validity of a candidate for president feels like the most cowardly poo poo ever. He's eligible or he's not, there shouldn't be wiggle room.
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Jan 1, 2024 15:11
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We should keep in mind that at this point, regardless of SCO, deep-red states with MAGA secretaries of state are absolutely going to try to remove Democrats from the ballot. The response should be to sue them and use the courts to--ahem--adjudicate. The solution to, "Fascists might use this law against us," is not to not enforce the law. It is, instead, to enforce the loving law. If someone breaks the law--like, say, a Secretary of State deciding Joe Biden is actually 34 years old--the correct recourse is the courts. Of course, if the entire state government in question ignores the SCO, that's getting into rebellion territory.
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Jan 1, 2024 15:29
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Iamgoofball posted:If the SC decides it as states rights we're just gonna see every blue state kick the republican off the ballot and every red state kick the democrat off the ballot until it gets re-litigated and undone. There is no slippery slope here. What you are claiming is that red states will ignore the constitution, federal law and their own laws and processes to make illegal rulings. If that happens there are worse problems than who claims to be president. No, the world won’t suddenly devolve into chaos because a clear case of the application of the rule of law actually is applied.
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Jan 1, 2024 15:44
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Murgos posted:There is no slippery slope here. Red states sent slates of false electors which ignored the constitution, federal law, and their own laws. quite a few vocal state republicans still support "the big lie". that's not gonna stop. the headlines write themselves: "Biden stole the 2020 election, and that's the real insurrection."
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Jan 1, 2024 15:50
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bird food bathtub posted:I'm law dumb, so going entirely off tummyfeels. Trying to "state's rights" your way out of a constitutional amendment about the validity of a candidate for president feels like the most cowardly poo poo ever. He's eligible or he's not, there shouldn't be wiggle room. No you're right it is. That result would be the Court twisting itself into a stupidity pretzel. Which they might do anyway. But still.
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Jan 1, 2024 15:55
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Hieronymous Alloy posted:No you're right it is. That result would be the Court twisting itself into a stupidity pretzel. Which they might do anyway. But still. Twisting themselves into a logic pretzel is about the only option we can expect them to take. Unless they surprise us all and rule that Trump is in fact ineligible due to the 14th.
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Jan 1, 2024 16:09
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Ynglaur posted:We should keep in mind that at this point, regardless of SCO, deep-red states with MAGA secretaries of state are absolutely going to try to remove Democrats from the ballot. The response should be to sue them and use the courts to--ahem--adjudicate. We should also keep in mind that Republicans have already been trying this for over a decade - the earliest I see is filing lawsuits in multiple states to remove Obama from the ballot in 2008 and 2012, but I haven't really researched further back. Also the Colorado lawsuit to keep Trump off of the primary ballot was filed by Republicans, so even if Democrats all agreed not to pursue enforcing the constitutional prohibition, there would still be a Republican push to have Trump declared ineligible to run and not allowed on the ballot in some states, and it would still end up going to the Supreme Court. The hand-wringing about Democrats opening the floodgates to ballot challenges against their candidates is just overwrought - Republicans have already been trying to remove Democrats from the ballot, and Republicans have launched enough efforts to get Trump off of the ballot that the Supreme Court would have to rule even if no Democrats made any attempt at having Trump declared ineligible to run.
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Jan 1, 2024 16:13
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StrugglingHoneybun posted:Red states sent slates of false electors which ignored the constitution, federal law, and their own laws. That is a blatantly false statement. Not one state endorsed and certified an arbitrary slate of electors that was not the winner of the popular vote in that state. Go make up stuff somewhere else. Some people, at Trumps request, signed false statements but this is a far cry from an official state act.
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Jan 1, 2024 16:37
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Gyges posted:I've been thinking that the Supreme Court ruling that States can decide whether or not to kick someone off the ballot under the 14th might be their best option. It actually helps their dismal reputation while also being unlikely to actually change any outcome. Obviously it makes Trump winning by one vote unlikely due to Main's distribution of EC votes, but are there any actual swing states that are going to kick him off the ballot? There's no way in hell the Supreme Court is going to leave it up to the states. It makes literally zero Constitutional sense at all. "The states can decide on their own what the federal Constitution means" is a complete non-starter in any remotely sane interpretation of constitutional law. The application of the federal Constitution is, by nature, a federal matter rather than a state one. The Supreme Court is absolutely going to choose either "Donald Trump is eligible to be president" or "Donald Trump is ineligible to be president". They might leave it open to future change (such as "Trump's eligibility might change if he's convicted"), but there's not going to be any kind of state-by-state eligibility. Whether someone is eligible to be president of the US is fundamentally a federal matter, not a state matter.
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Jan 1, 2024 17:13
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Murgos posted:That is a blatantly false statement. Not one state endorsed and certified an arbitrary slate of electors that was not the winner of the popular vote in that state. no State seal on the envelope, but I doubt that while federal reps in the US capitol were actively planning the break-in on 1/6 to buy time for doubt to be sewn, not a single red State Rep was involved w/ sewing that doubt via the false electors they're bad people, OP.
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Jan 1, 2024 17:19
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If the SCOTUS leaves this up to a patchwork of states to decide who violated the 14th amendment and who didn't I 100% expect red states to bar Biden and blue states will bar the Republican. Then we'll have an election where you straight up can't vote for the other guy in half of the states, and it'll be another bullet point in the "Lead up to the Second American Civil War" chapter for future history books. Plus, even leaving aside from this being another step in the breakup of the union, local party members would have every desire to bar the opposing party's presidential candidate from the ballot since it would dramatically drive down turnout for their opposition, even if that opponent didn't really have a shot at winning.
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Jan 1, 2024 17:25
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StrugglingHoneybun posted:
I mean, they're being criminally charged as a result. e.g., https://www.nytimes.com/2023/12/06/us/politics/trump-fake-electors-nevada.html Ynglaur posted:We should keep in mind that at this point, regardless of SCO, deep-red states with MAGA secretaries of state are absolutely going to try to remove Democrats from the ballot. The response should be to sue them and use the courts to--ahem--adjudicate. This is the actual answer, yeah. Republicans are gonna republican and the answer is to actually enforce the law. If we can.
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Jan 1, 2024 17:37
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Nitrousoxide posted:If the SCOTUS leaves this up to a patchwork of states to decide who violated the 14th amendment and who didn't I 100% expect red states to bar Biden and blue states will bar the Republican. Then we'll have an election where you straight up can't vote for the other guy in half of the states, and it'll be another bullet point in the "Lead up to the Second American Civil War" chapter for future history books. That's not going to happen. They may try, but judges will slap it down pretty quickly. You're implying that Trump's disqualification would be arbitrary and capricious. It would be based on solid legal and constitutional principles, and any attempt to bar anyone else would have to be likewise.
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Jan 1, 2024 18:07
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It strikes me as odd that any Republican state who wants to bar the Democratic candidate from the ballot and needs only the lightest, obviously fraudulent legal justification to do so wouldn't have already done so in one of the past four elections where Obama's and Harris' birth statuses and Hillary's Destruction/Concealment would have been at least as plausible as claims of insurrection. It also strikes me as odd that they wouldn't find and use nonsense figleafs even if SCOTUS rules in either direction on insurrection. The idea of crossing the rubicon or a slippery slope here shares DNA with the intellectually insulting and historically illiterate canard that Dems lost the Supreme Court by eliminating the judicial filibuster for lower courts to resolve the GOP-created crisis (Roberts' words!) at those levels. In both cases, the narrative relies on a Republican party that, no matter how disingenuous or manipulative, is docile and respectful enough to accept defeat when they don't get their way but also cartoonishly evil and effectively unstoppable once Democrats take action to resolve the crisis they created. It requires an Eco-ian GOP that at once is too inept and/or moral to act for its own clear benefit but simultaneously ruthless and brutally efficient the moment Dems have acted. The subject of  is generally considered to be about fascist rhetoric, not the fash themselves.Main Paineframe posted:There's no way in hell the Supreme Court is going to leave it up to the states. It makes literally zero Constitutional sense at all. "The states can decide on their own what the federal Constitution means" is a complete non-starter in any remotely sane interpretation of constitutional law. The application of the federal Constitution is, by nature, a federal matter rather than a state one. I think you're likely right about how SCOTUS will rule and why, but as with previous claims by others ITT that there's no plausible argument Trump can be disqualified absent a conviction for insurrection, I think it underrates the opposing view in an unhelpful way for readers. I don't think a SCOTUS ruling defining "insurrection or rebellion" and "engaged in"/"given aid or comfort" and leaving the rest to states (e.g. the weight to give testimony by extremist communication experts vs testimony by Kash Patel) is a complete nonstarter. I think it's unlikely, but I put that down more to the judges than the underlying principles of ConLaw. All that said, a reminder for everyone to take any poo poo I say about law with a boulder of salt as IANAL
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Jan 1, 2024 18:38
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Murgos posted:There is no slippery slope here. They wouldn't be ignoring anything because it would be up to them to decide. It would be the easiest thing in the world to decide in a ruling that so called "open borders" give aid or comfort to the enemies of the USA and the States would have the right to make that determination.
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Jan 1, 2024 19:33
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Paracaidas posted:It strikes me as odd that any Republican state who wants to bar the Democratic candidate from the ballot and needs only the lightest, obviously fraudulent legal justification to do so wouldn't have already done so in one of the past four elections where Obama's and Harris' birth statuses and Hillary's Destruction/Concealment would have been at least as plausible as claims of insurrection. It also strikes me as odd that they wouldn't find and use nonsense figleafs even if SCOTUS rules in either direction on insurrection. Plus, like, they've already tried. They tried for years. Trump specifically tried. Half the thread seems to be forgetting the entire "long form birth certificate" thing. It didn't work, because the Courts are not wholly corrupt. We don't (yet) live in a corrupt dictatorship where the laws are whatever Putin decides they are that day. Judges have careers and most value the esteem and judgment of their peers and generally want to be seen as neutral fair arbiters (which is not the same as wanting to be neutral fair arbiters, but still). Trump's appointments and cultists have put a *lot* of pressure on that system. The next year in Trump Law is likely to prove an inflection point, because dude is crazy guilty of a lot of massive crimes, like absolutely indisputably megaguilty, like none of his attorneys are even trying to argue he didn't actually do hella crimes, his entire defense strategy is obfuscation and delay. But, conversely, it's really clear that the Supreme Court is tilting absurdly partisan in a way it hasn't in a *really* long time. Similarly, the Constition is surprisingly clear on the "can't be a candidate" thing and there isn't much real wiggle room for the Court to duck or evade. But we all saw what happened with Bush v. Gore and half the current court was on Bush's legal team in that case. So the next year is going to be *interesting*. It is very likely that this time next year, Trump will either be in a cell, or President of a "if the president does it, it's legal" dictatorship. Hieronymous Alloy fucked around with this message at 20:05 on Jan 1, 2024 |
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Jan 1, 2024 19:53
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Paracaidas posted:Lower federal courts, as with MTG, have kept the matter with the states when given the opportunity and there's strong argument that the states constraints on federal candidates are equal whether President, Senator, or Representative. It's not clear to me why the process to adjudicate disqualification by insurrection must differ from the process to adjudicate disqualification by birth, age, or number of past terms. It's not really about the process, it's about the results. While these cases are nominally about ballot access, the underlying constitutional question doesn't really have anything to do with ballots at all. The real question that underlies the Maine and Colorado cases is "is it legal, under US law, for Donald Trump to be president?". For obvious practical reasons, the answer to that question can't vary from state to state. States can have their own ballot access restrictions on top of the federal requirements, and they're not obligated to let any federally-eligible candidate onto the ballot. It's perfectly fine for someone to be left off a state's ballot and still win the presidency. But Maine and Colorado aren't just saying that it's illegal for Trump to be on the ballot in their states. By invoking the 14th Amendment, they're saying that it's illegal for Donald Trump to be president, at all, anywhere in the US. The states can have differences on whether their own state ballot access laws allow a person to appear on the ballot in their state, but they can't have differences on whether someone is allowed to be president at all. That's a guaranteed constitutional crisis if that candidate wins. We can't have a Schrodinger's President where somebody is president in some states but not in others, and the Supreme Court really has no choice but to settle the issue nationally before it gets to that point. It's not something that comes up with senators and representatives because they only run in one state at a time anyway, and it's not something that comes up with the other qualifications because the states are unlikely to have differences of opinion on a candidate's age or number of past terms. I'm not a lawyer either, of course, but I think the specific constitutional questions in play here make it essentially impossible to handle the issue on a state-by-state basis.
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Jan 1, 2024 20:31
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Worth noting that if past is prologue, the mere consideration by those on the left of taking this type of action against Trump means that the GOP will actually do it in the next cycle. Slippery slope arguments don't make a lot of sense in the current climate. The GOP is greased at all times.
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Jan 1, 2024 20:43
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greasy old people
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Jan 1, 2024 21:16
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Main Paineframe posted:It's not really about the process, it's about the results. While these cases are nominally about ballot access, the underlying constitutional question doesn't really have anything to do with ballots at all. The real question that underlies the Maine and Colorado cases is "is it legal, under US law, for Donald Trump to be president?". For obvious practical reasons, the answer to that question can't vary from state to state. On the other hand aren't there concerns about whether its "self-executing" or not? Could that be how the USSC tries to split the baby by saying its up to the states to decide how to execute it?
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Jan 1, 2024 21:22
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negativeneil posted:Worth noting that if past is prologue, the mere consideration by those on the left of taking this type of action against Trump means that the GOP will actually do it in the next cycle. Slippery slope arguments don't make a lot of sense in the current climate. The GOP is greased at all times. To recall an earlier post: the GOP already tried this with Obama. They failed because the courts and secretaries of state maintained facts based on evidence and objective reality.
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Jan 1, 2024 21:36
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Raenir Salazar posted:On the other hand aren't there concerns about whether its "self-executing" or not? Could that be how the USSC tries to split the baby by saying its up to the states to decide how to execute it? I mean, everything is "concerns" these days. Someone always has "concerns". "Concerns" are just another way of soft-pedaling bullshit. If you're actually doing any kind of legal analysis, you run into the stumbling block of "oh wait, this disqualified every former confederate soldier. . . whether they had a trial or other proceeding or not first", so there's no meritorious argument that the clause is not fully self-executing. This Court could do a lot of poo poo. But if they do anything other than either "duck question and avoid giving a ruling" or "lol, nope,  ", they aren't a court any more, they're just a stamp for Republican partisan goals.
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Jan 1, 2024 21:40
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Hieronymous Alloy posted:I mean, everything is "concerns" these days. Someone always has "concerns". "Concerns" are just another way of soft-pedaling bullshit.
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Jan 1, 2024 21:54
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negativeneil posted:Worth noting that if past is prologue, the mere consideration by those on the left of taking this type of action against Trump means that the GOP will actually do it in the next cycle. Slippery slope arguments don't make a lot of sense in the current climate. The GOP is greased at all times. Worth noting that they've actually been doing it for more than a decade with birther lawsuits against Obama, which means the time to worry if they might start taking this type of action was back in 2007 or earlier and it's a bit late to be concerned now. Also worth noting that one of the two successful lawsuits removing Trump from the ballot was filed by Republican candidates, and the guy who has filed lawsuits (that haven't gone anywhere) in a dozen states is also a republican candidate. So the GOP is taking this kind of action against Trump already, and what the left does would't stop this issue from being in court. Worrying whether 'the left' challenging Trump's eligibility will prompt Republicans to start challenging candidate's eligibility when they've been challenging Democratic candidates since at least 2008 and are currently challenging Trump's eligibility themselves really makes no sense at all.
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Jan 1, 2024 22:11
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The Islamic Shock posted:So very funny that what the ruling based on the actual facts of the case should be is like the free question on a Constitutional law test that's there because the professor felt nice that day but not a single swingin' dick in here confidently believes the highest court in the land is going to rule that way Exactly. Like, to rule in Trump's favor on this you have to start endorsing multiple obviously absurd legal theories, like the idea that the President doesn't take an oath to "support" the Constitution, only an oath to "preserve, protect and defend" it (presumably referring to the physical document only). It's the inevitable absurdism of a Court that has abandoned jurisprudence for partisanship and we're all goddam Casey Jones in this thing wondering whether or not our legal system has gone off the tracks. Hieronymous Alloy fucked around with this message at 22:20 on Jan 1, 2024 |
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Jan 1, 2024 22:14
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Fart Amplifier posted:They wouldn't be ignoring anything because it would be up to them to decide. It would be the easiest thing in the world to decide in a ruling that so called "open borders" give aid or comfort to the enemies of the USA and the States would have the right to make that determination. The sec state of Texas could try and declare that Biden committed insurrection by spending a hundred billion a year on the border patrol and incarcerating thousands of immigrants and a whole judicial process of immigration and etc… And have that upheld by a state court, an appeals court, the state Supreme Court and SCOTUS. Actually no, It just doesn’t work.
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Jan 1, 2024 23:55
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Raenir Salazar posted:On the other hand aren't there concerns about whether its "self-executing" or not? Could that be how the USSC tries to split the baby by saying its up to the states to decide how to execute it? No, because the question at hand is "is it legal for Donald Trump to be president?", and that's not something that the states can reasonably be allowed to disagree about. Just run your hypothetical "what if the states decide for themselves" forward to voting day. n Maine and Colorado, the state governments and courts have ruled that Donald Trump is ineligible to become president, and therefore could not possibly be the legitimate President of the United States. In other states, Trump would still be on the ballot, and those other states could potentially deliver a victory to Trump anyway. So what happens if he wins? In some states, Trump would be the legitimately-elected President of the entire United States. But in Maine and Colorado, Trump would have been legally declared to be ineligible to be president, and thus any electoral votes cast for him by those other states would be regarded by the governments of Maine and Colorado as illegitimate and invalid. The result would be that only some of the states would recognize Trump as president, while the rest would regard him as constitutionally and legally ineligible to be president (which isn't something they can just handwave away). That's not a situation that can be allowed to stand for any length of time without plunging the country into a constitutional crisis or civil war, and thus would have to immediately be rushed up to the Supreme Court to decide for all 50 states whether Donald Trump is president or not. And the Supreme Court should be well aware of all this, which is why it's very unlikely that they'd do something as foolish as trying to leave presidential qualifications up to states' rights. There's no reasonable room for baby-splitting allowed here - either Trump is eligible to be president of all fifty states of the US, or he's ineligible to be president of all fifty states of the US. Each state can decide for themselves whether he's going to be on their ballots, but they can't decide for themselves whether it's legal for him to be president.
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Jan 2, 2024 00:11
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StrugglingHoneybun posted:
Right, which is why we should not give a poo poo what they might do and we certainly shouldn't try to craft our laws around their malfeasance.
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Jan 2, 2024 00:16
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The Islamic Shock posted:So very funny that what the ruling based on the actual facts of the case should be is like the free question on a Constitutional law test that's there because the professor felt nice that day but not a single swingin' dick in here confidently believes the highest court in the land is going to rule that way Which is what is leading to all of us with a law degree from Law & Order speculating on how they're going to do it. They're not doing any more law in this situation than us, they're just better at sprinkling a little law dust on their justification to do whatever they want.
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Jan 2, 2024 01:20
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Murgos posted:The sec state of Texas could try and declare that Biden committed insurrection by spending a hundred billion a year on the border patrol and incarcerating thousands of immigrants and a whole judicial process of immigration and etc… 1. I didn't say anything about insurrection. 2. It's not far fetched to imagine state supreme courts finding Biden's border policy aids enemies of the USA. Far crazier rulings survive state court scrutiny. 3. We're talking about if SCOTUS rules that these determinations are up to the states or not. If they rule that its up to states to determine ineligibility then they wouldn't have a reason to overturn it.
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Jan 2, 2024 01:44
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Main Paineframe posted:There's no reasonable room for baby-splitting allowed here - either Trump is eligible to be president of all fifty states of the US, or he's ineligible to be president of all fifty states of the US. Each state can decide for themselves whether he's going to be on their ballots, but they can't decide for themselves whether it's legal for him to be president. There's also no *reason* for the court to baby-split. Either they want Trump president drat the torpedoes in which case they say crimes are legal, or else they don't, and they say . A "state's rights" ruling just increases the chaos and creates more work for the Court in future while not achieving any clear policy goals either way. It doesn't get Thomas more trips on a jet, it doesn't get Kavanaugh any more baseball tickets, it doesn't get Roberts any more invitations to DC parties or let him give any more speeches about the importance of judicial neutrality. There's no reason for it. If the court wants to dodge, they'll dodge harder than that, probably by just delaying a ruling until after the election then saying "Welp, too late to change anything now I guess!" or something similar.
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Jan 2, 2024 01:51
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Hieronymous Alloy posted:Exactly. I think the most direct way to rule for Trump is simply to state that he didn't commit insurrection. If you look at McDonnell v. United States (which admittedly concerned federal law) it set a rather high bar for behavior by an elected official to be considered corrupt. If you set a similarly high bar to engage in insurrection, you could easily see a conservative SCOTUS majority stating that Trumps acts didn't rise to that level. He needed to give direct unambiguous orders; engage in violence personally, etc. etc. Simply stating the election was stolen, or that you hoped Mike Pence would 'do the right thing' isn't sufficient. There's some consistency there with first amendment jurisprudence (generalized calls to violence are protected, specific calls to violence are not). I don't think Roberts would get 9-0 for that theory by any means, but I don't think there's a 9-0 to be had at all. And I honestly wouldn't be that surprised to see Trump lose. I think about Gorsuch sometimes getting hung up on the plain meaning of words. He might just look at Trump's activities and think to himself 'that sure does look like insurrection', then shrug and pull the trigger.
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Jan 2, 2024 02:05
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Vietnom nom nom posted:I think the most direct way to rule for Trump is simply to state that he didn't commit insurrection. If you look at McDonnell v. United States (which admittedly concerned federal law) it set a rather high bar for behavior by an elected official to be considered corrupt. If you set a similarly high bar to engage in insurrection, you could easily see a conservative SCOTUS majority stating that Trumps acts didn't rise to that level. He needed to give direct unambiguous orders; engage in violence personally, etc. etc. Simply stating the election was stolen, or that you hoped Mike Pence would 'do the right thing' isn't sufficient. There's some consistency there with first amendment jurisprudence (generalized calls to violence are protected, specific calls to violence are not). Yeah, you're right that there's a decent chance they go that route. The difficulty is that the Colorado trial court went over all that in detail and made a specific factual finding that Trump had, in fact, committed insurrection. I think you're right that it basically comes down to how willing Gorsuch is pull the trigger. If he does I think Roberts will go along.
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Jan 2, 2024 03:37
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Is it possible the SC could just delay making a 14th amendment decision until after the Jan 6th trial? Like if the jury finds Trump guilty, then maybe the SC will have their justification to claim he's not eligible for president under the 14th amendment. Which could conceivably happen before the election and if it does then I could see a bunch of other state supreme courts declaring he's disqualified. And if that happens the inevitable appeals to the SC will probably just be ignored since it was already ruled on.
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Jan 2, 2024 06:11
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