Thursday, February 08, 2024
PMT: The Trump Question
Today the Supreme Court will be hearing argument in Trump v. Anderson, the case involving the Colorado Supreme Court's holding that Donald Trump is ineligible to run for president because he was involved in an insurrection, under a theory set out by my friend William Baude and my colleague at UST, Michael Paulsen. They rely on the third section of the Fourteenth Amendment, which says this:
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.
The trial court in Denver found that Trump did engage in an insurrection, but that he was not an oath-taking "officer" of the United States. Which, frankly, is kind of bonkers. The Colorado Supreme Court upheld the finding on insurrection, but reversed the finding on whether or not Trump was an "Officer" of the United States, thus barring Trump from the ballot. If the Supreme Court of the United States upholds that opinion, it will at the least allow states like Colorado to bar Trump from their ballots, and could result in his being disqualified more broadly.
Cynical people who have convinced themselves that the Supreme Court has become nothing more than a political vehicle think the Republican appointees on the court (Alito, Thomas, Roberts, Gorsuch, Kavanaugh and Barrett) will obey their master and vote for Trump out of political fealty.
I'm not totally that cynical. I think Alito and probably Thomas will do exactly that. But... I do think there is some chance that two of the other four (Roberts, Gorsuch, Kavanaugh and Barrett) will peel off and vote against Trump, join the three Democratic appointees, and constitute a 5-4 majority.
Will they do that because they are hewing to the textualism and/or originalism that they espouse, when both approaches seem to push against Trump's position? Maybe. Possibly. Probably not.
But there is something else going on, and it is in a way political. None of those four want to see Trump cases endlessly headed their way like shark-nados, a fate that is almost certain if Trump wins-- and each case will be accompanied by Trump's assertions that they are bound by loyalty to protect him. If they vote him ineligible, they could well be freed of that fate. And... and this is important... each of them wants to be viewed as independent, as thoughtful, as something other than bought-and-paid-for. They hate the idea that people think that this court is more about politics than about law. This case is their chance to shed that image and still be free to be as super-conservative as they want going down the road.
So, maybe that? We'll see.
Comments:
Post a Comment
<< Home
<< Home
