Despite all that has been written on this case Adam manages to say something new useful cogent and thoroughly considered. Plus as usual witty and fun to read. Thanks.
Justice Gorsuch also co-wrote a 1991 Hofstra Law Review article (pre-dating Thornton) arguing similar points as Justice Thomas used in Thornton. He also delved more deeply into the tangential (and possibly relevant) issues of qualification v. manner of election and right to be on the ballot.
So, Adam, what are your thoughts now, after the oral arguments? ALL the justices except, maybe, Sotomayor, seem to be inclined to NEVER REACH THE MERITS and instead to run away from making a decision, using whatever flimsy procedural hook they can find that maybe, remotely, seems plausible. I, for one, was shocked, and I almost fell off my chair when Justice Jackson jumped on the train for running away from making a decision on the merits.
The impression I came away with was that the justices were saying that the states can’t enforce Section 3, and the feds can’t enforce Section 3 (because there is no current federal procedure for doing so), therefore NO ONE CAN ENFORCE SECTION 3. And what’s worse, the justices appear to be just fine with that result. If no one can enforce Section 3, the USSC never has to decide if Donald Trump is an oath breaking insurrectionist.
Any decision that results in this issue coming back to SCOTUS later is just irresponsible. Therefore, there are really 3 questions: 1. did he engage in insurrection, 2. is Presidency the right kind of office, and 3. is the Presidency the right kind of officer with the right kind of oath. #2 would be a terrible way to decide in Trump's favor (Pres can be insurectionist, but House rep can't?). #1 is a sketchy option bc he pointed armed and angry J6ers to the Capitol and against everyone's advice waited 3 hrs to tell them to go home. #3 is the least worst option as Blackman and Tillman point out. But, Nixson v. Fitzgerald uses officer for the President, the state officer referred to in the same part of Section 3 clearly means someone who holds office with significant authority (the state can't pick and choose which positions aren't officers), and the only way to exclude President from officer in 14A S3 is to import that meaning from other constitutional texts that exclude President bc of their individual contexts, not bc of something in the office.
Nixson v Fitzgerald:
"This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities..."
"The Court’s job is not to reach statesmanlike compromises based on political judgments about how particular decisions will be received. Its job is to interpret a written document."
Amen. There are way too many people encouraging the justices to act as CNN pundits, and try to game out the political consequences of a particular legal outcome. They are not good at that. Nobody is even trying to help them get better at it.
You know who the last justice to make an important decision based around their ability to predict the actions of the American electorate? Ruth Bader Ginsberg. How did her predictions pan out? Not great.
If SCOTUS affirms in a manner that would kick Trump off of most general elections ballots, isn't the most likely outcome that the GOP swaps in Don Jr.? Trump Sr. still does all the campaigning, and Trump Jr. promises that his dad will do all the president stuff and make all the decisions. Junior just signs the paperwork.
MAGA would eat that up. "Trump outfoxed the globalists again!" All the pipe bombs go back in the bunkers and the election proceeds as normal. (Plus Roberts gets a free pass to do whatever the hell he wants for the next two decades, having established his "centrist" bona fides.)
Have any legal commentators analyzed whether the Brooks Brothers Riot would have constituted an insurrection? I know none of the Bush 2000 vets on the Court directly participated. But I'm sure that, in defining whether Trump was an indirect participant, they'll reject any definition that could even arguably include themselves. It might also be relevant to their selection of a definition of "insurrection."
Despite all that has been written on this case Adam manages to say something new useful cogent and thoroughly considered. Plus as usual witty and fun to read. Thanks.
So…are you going to write an amicus brief in support of Anderson? Please?🙏
Justice Gorsuch also co-wrote a 1991 Hofstra Law Review article (pre-dating Thornton) arguing similar points as Justice Thomas used in Thornton. He also delved more deeply into the tangential (and possibly relevant) issues of qualification v. manner of election and right to be on the ballot.
So, Adam, what are your thoughts now, after the oral arguments? ALL the justices except, maybe, Sotomayor, seem to be inclined to NEVER REACH THE MERITS and instead to run away from making a decision, using whatever flimsy procedural hook they can find that maybe, remotely, seems plausible. I, for one, was shocked, and I almost fell off my chair when Justice Jackson jumped on the train for running away from making a decision on the merits.
The impression I came away with was that the justices were saying that the states can’t enforce Section 3, and the feds can’t enforce Section 3 (because there is no current federal procedure for doing so), therefore NO ONE CAN ENFORCE SECTION 3. And what’s worse, the justices appear to be just fine with that result. If no one can enforce Section 3, the USSC never has to decide if Donald Trump is an oath breaking insurrectionist.
How does that strike you, Adam?
Sure seems like they are about to do exactly what you warned against here.
Any decision that results in this issue coming back to SCOTUS later is just irresponsible. Therefore, there are really 3 questions: 1. did he engage in insurrection, 2. is Presidency the right kind of office, and 3. is the Presidency the right kind of officer with the right kind of oath. #2 would be a terrible way to decide in Trump's favor (Pres can be insurectionist, but House rep can't?). #1 is a sketchy option bc he pointed armed and angry J6ers to the Capitol and against everyone's advice waited 3 hrs to tell them to go home. #3 is the least worst option as Blackman and Tillman point out. But, Nixson v. Fitzgerald uses officer for the President, the state officer referred to in the same part of Section 3 clearly means someone who holds office with significant authority (the state can't pick and choose which positions aren't officers), and the only way to exclude President from officer in 14A S3 is to import that meaning from other constitutional texts that exclude President bc of their individual contexts, not bc of something in the office.
Nixson v Fitzgerald:
"This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities..."
"The Court’s job is not to reach statesmanlike compromises based on political judgments about how particular decisions will be received. Its job is to interpret a written document."
Amen. There are way too many people encouraging the justices to act as CNN pundits, and try to game out the political consequences of a particular legal outcome. They are not good at that. Nobody is even trying to help them get better at it.
You know who the last justice to make an important decision based around their ability to predict the actions of the American electorate? Ruth Bader Ginsberg. How did her predictions pan out? Not great.
If SCOTUS affirms in a manner that would kick Trump off of most general elections ballots, isn't the most likely outcome that the GOP swaps in Don Jr.? Trump Sr. still does all the campaigning, and Trump Jr. promises that his dad will do all the president stuff and make all the decisions. Junior just signs the paperwork.
MAGA would eat that up. "Trump outfoxed the globalists again!" All the pipe bombs go back in the bunkers and the election proceeds as normal. (Plus Roberts gets a free pass to do whatever the hell he wants for the next two decades, having established his "centrist" bona fides.)
Have any legal commentators analyzed whether the Brooks Brothers Riot would have constituted an insurrection? I know none of the Bush 2000 vets on the Court directly participated. But I'm sure that, in defining whether Trump was an indirect participant, they'll reject any definition that could even arguably include themselves. It might also be relevant to their selection of a definition of "insurrection."