Frankly, I have no idea who you are or how I ended up subscribed to your substack but this is the best and most important piece I've read on Trump v. Anderson.
'Statesmanship' may not be the most apt framing of this decision.
Why is it, Adam, that the only 'practical consequences' evidently of concern to you and so many other commenters are ramifications of disqualification of a candidate pursuant to the constitution, and never the candidacy of one who grossly violated his oath in attempting to overthrow our constitutional order?
I'm prepared to accept SCOTUS' ruling--which appears dangerously close to nullifying Section 3--regardless of whether I agree with it, because I support this constitutional order, and Trump supporters ought to be equally prepared to accept a SCOTUS ruling that Trump is ineligible.
And, in a related vein, Adam, I would suggest that you seek to avoid bolstering your argument by casting aspersions on unnamed "progressives" and "supporters of the Colorado Supreme Court’s decision" whom you accuse of inconsistency in their thoughts. If there's a specific meaningful example you have in mind, cite to it. There will always be someone out there who thinks or says something dumb or hypocritical, but that doesn't mean it merits the attention of the rest of us. You cheapen your commentary by resort to this approach.
> If New Yorkers want to get guns off the streets, who cares whether Sir John Knight was acquitted of violating the Statute of Northampton in friggin’ 1686? Likewise, if the America of 2024 is best off permitting the election to proceed in an orderly fashion, shouldn’t we be able to just do that?
Doesn't this effectively turn judges into legislators? The theory is that legislators make laws, and judges just clear up any edge cases in existing laws. If judges are allowed to overturn old laws, that makes them strictly more powerful than legislators, who have to go through a more involved process to get laws changed.
100% correct. It's obvious that SCOTUS couldn't issue a decision that disenfranchised 75 million voters on the only vote they care about (President), and also obvious that SCOTUS couldn't allow inconsistent standards for disenfranchising voters in different states for the presidential election.
So they came up with this. It's fine. It does the job. And "getting the Constitution right" is not the singular value in constitutional adjudication. It never has been. (E.g., all stare decisis arguments are about the fact that it's better to have coherent rules than to be absolutely "right".)
It doesn’t disenfranchise voters to disqualify an ineligible candidate. If Trump were not a natural born citizen we wouldn’t let him run even if 75 million people wanted him to. That’s a ridiculous argument.
If someone took your vote away for President based on a claim that you disagreed with, you would not say "i am fine, I can still vote for the candidates that John Roberts has given me permission to vote for."
You would say your vote was stolen away, and you might join civil unrest until your right to choose YOUR candidate was restored. And you would be right to.
It’s also ludicrous to say we can’t have different standards in different states. The way to get on the ballot differs wildly by states. If Trump gets a certain number of signatures, he’s on the ballot in one state, but the same amount may be insufficient in another. Nobody says that’s disenfranchising him or his voters.
I recognize they’re not exactly the same thing. But the states already have different rules and determinations for different elections. It wasn’t a problem until an insurrectionist ran for President.
It's not only not only the same, it's 180 degrees different. States will NEVER exclude a candidate with 75 million voters basee on filing deadlines and if they did the courts aren't stupid and would put the candidate back on.
I absolutely would not be right to, not if my candidate was ineligible. I might not understand or realize that, but it would be the case.
If you want to make a practical argument that the risk of civil unrest was too great fine, but don’t dress it up as some righteous cause or defending democracy. Trump is ineligible and everyone knows it.
Trump voters aren't required to agree with you that he is ineligible. That is the thing about SCOTUS. They can rule something, but they can't force the public to accept it.
If John Roberts makes a ruling and then 75 million Trump voters make America unliveable until he is put on the ballot again the fact that you think their constitutional interpretation is wrong is irrelevant.
Sure. But don’t talk about “disenfranchising 75M Americans.” They aren’t disenfranchised any more than I am because I can’t vote for a 26 year old President.
The VOTERS get to decide for themselves whether they are disenfranchised. Your opinion is irrelevant to the equation, as is Roberts, Sotomator, anyone in Colorado, et al. 75 million Trump voters see persecution, and would consider themselves disenfranchised. That's all that matters.
Nope. AWFUL comparison. One thing is unarguable- age. The other is TOTALLY contested.
You need to have some empathy. If the Supreme Court, or your state, disqualified Biden, or whoever you are voting for, as an insurrectionist, would you say "I totally retain my franchise."? Of course not.
This is indeed disenfranchisement. It's taking away the vote of 75 million people, not 10 people who want to vote for a 26 year old. Based on a standard nobody agrees on. And that's why you can't do it.
Absolutely. If 5 unelected Justices tried to strip me of my right to vote for Joe Biden, I would absolutely join continuous street protests and aim to shut down the American economy until my franchise was restored.
And I would be right to do so. You don't have 4 or 5 elites screw with 75 million people's votes for President, and the people who brought this suit never understood that.
You guys are convinced that "engaging in insurrection" is some indisputable, objective precise term that everyone agrees on and thus the 75 million people who support Donald Trump for President are just going to say, "you know what, you are right, we agree, our preferred candidate engaged in insurrection" and that if they don't accept what liberals and the left and Never Trump Republicans define as the vague term of "insurrection" they are somehow being unreasonable and deserve to lose their franchise.
And that's just not something they are required to accept. I wouldn't accept it.
One of the things you have to accept if you want to live in a democracy is that there's no God to adjudicate political disputes. If lots people disagree with you, the "rightness" of their opinion doesn't matter one bit. They get the same vote you do.
Trying to swoop in with 5 unelected judges to say "we'll solve this, we'll just take their preferred candidate off the ballot and that will end the whole thing" is both completely loopy and incredibly disrespectful of your fellow citizens' fundamental right to think differently about Donald Trump than you do.
And yes, if you take 75 million people's votes away, you may reap the whirlwind, entirely properly. And I'd rather we have to live with an allegedly "wrong" interpretation of the Constitution than get killed in street violence over some stupid purism over the disputed, hopelessly vague term "insurrection".
I don't have any trouble with states being able to decide disqualification for state offices, or even for federal offices (like representative and Senators) that impact only the voters in that state for a particular office that is only applicable to that state. I do have a problem with allowing different states to come to different conclusions about an over-arching position--which is pretty much the presidency. How to fit that into the 14th Amendment?
I have no clue, of course. The problem is in the Amendment itself and its historical background. I doubt that the drafters ever contemplated a president who was an insurrectionist while in office. The only way to make the distinction is, ironically, the very weak argument that the word "office" doesn't mean President, which clearly makes no grammatical sense given all the other places that role is described as an "office."
The drafters had a clear target in mind--those who had actually seceded and fought. One can't blame them for not foreseeing an acting president himself trying to undo an election he just lost.
The difficulty with allowing states to decide for themselves on disqualification of a presidential candidate is chaos, but legal chaos, not the simple fear of Civil War 2.0. The key problem is what "insurrection" means in the absence of Civil War 1.0--that could be wildly different, leaving the country with no way to have an election that everyone COULD agree was "fair." I suspect that this is why the concurring liberal justices concurred instead of dissented. Some states could find that BIDEN committed insurrection by TAKING office despite the "Steal." They would be wrong--but the GOP is certainly in the business of pursuing what "impeachable" means. Can we have a situation where a state could bar a candidate without evidence? What would happen if "evidence" becomes so loosey-goosey as to allow wildly different interpretations of what IT means?
Basically, unfortunate drafting results in impossible interpretation no matter which way you go. The drafters simply didn't consider the difference between state-wide offices and the nation-wide office of president.
I am with the concurrence that the court had no business telling Congress what KIND of law they had to pass. I hope when Congress gets around to it, they will pass a law that MAKES the state/nation-wide distinction clear. Right now, I don't see how the 14th Amendment can rationally be applied to nation-wide office.
1. IIRC, when the 14th amendment was adopted, senators were chosen by their state legislatures. That certainly should support the notion of states being able to DQ insurrectionizers from the Senate. I don’t recall that point coming up in any of the millions of words written over this case.
2. Per the Amar Brothers’ amicus brief, a major impetus for Sec 3, along with that war, were the considerable efforts made by incumbent confederate-sympathizing federal office holders to prevent Lincoln from taking office in 1861, in ways strikingly similar to 2020~21.
You are right about the dating of the Amendments but I'm not sure how it is relevant. Senators have other duties too, like approving Supreme (and other) court nominations, or voting on impeachments. I don't think anyone has ever argued that those are the prerogatives of the states.
I didn't read the briefs you mention, but I have read that only 8 people were ever actually disqualified under paragraph 3. Does the brief describe who they were and who actually did the disqualifying? And were the efforts in 1861 considered insurrection? Or just the 1861 version of seditious conspiracy?
None of this speaks to my main concern, about the havoc that could arise about the very MEANING of evidence should some state decide to define insurrection as something a president (here, Biden, but any president) actually didn't do, but the state decides s/he did.
I can see that State A might want to decide that Senator X engaged in insurrection and disqualify him as not worthy to represent the state. That only affects State A. The trumped up evidence issue could arise if State B decides Senator Y committed insurrection; there would be differing definitions of insurrection. But voters in State C, D, and E wouldn't have the choices of their candidate (by definition not a Senator in A or B) affected by what state A and B did.
Lord knows, I wish the court had said "well, the facts show it was indeed and insurrection and so we have to apply the disqualification across the board." That would be hard given the posture of the case. Does anyone know why the plaintiffs didn't sue in FEDERAL court for this disqualification--that would have let (or forced) the federal courts from District on up to deal with the root issue, particularly if a suit in a different federal court in a different circuit came to the opposite conclusion after a trial.
Yeah, idk. The opinion was hastily crafted and edited, and released unpolished before Super Tuesday. That state courts can't disqualify federal candidates without express delegation but can disqualify state candiates sounds about right to me: Do we want Texas or Florida disqualifying Biden (yes, that would happen)? Or worse: Do we want Alabama to decide that the sitting Senator from California is disqualified and refuse to follow laws Future Senator Shiff votes on? Any other decision by the Supreme Court would be the 16th Amendment controversy on steroids.
States run elections, but cant impose additional federal qualifications. Disqualification standards for Federal elections need to be uniform and objective (including the standard of evidence for a crime like insurrection). The Constitution imposes uniform standards. That's not "statesmanship," thats common sense. Is that explicitly written in the Constitution? Probably not to the degree of precision that satisfies the legal nerds who get paid by the word to obfuscate, but who cares. The whole point of a federal constitution is uniform federal standards. Some things are just obvious and dont need to be explicit.
Legal nerds can dress it up in whatever legal jargon and gobbledygook is the flavor of the day.I am sure many cv's were padded by the SSRN papers generated by this case (unironically, the SC cited none lol). The Supreme Court was never going to disqualify the candidate of choice of 75 million people on legal pencil shavings.
I personally wanted to see Trump defeated the old fashioned way, at the ballot box, in the primary, through the ancient alchemy of persuasion, a lost art in the halls of academia. Unfortunately, Democrats lawfare only enhanced and galvanized his support.
In the very last sentence there, you take away agency from Republican primary voters. Prosecution for various alleged crimes with all the due process rights that everyone else is entitled to, is sufficient to force _support_??
Its fairly easy to dismiss everything getting thrown at Trump as partisan (no I am not a fan of Trump but try to see the opposite side). For example, the 350 million verdict against Trump in New York may be correct as a New York legal matter (read the opinion, its instructive, he wildly inflated the value of Mar-a-Lago, and there are others).
But (and this is an important but) the NY statute apparently does *not* require that the Laetitia James' office prove reliance, a central element of any criminal fraud case. Reliance means "The speaker must have also intended that the person to whom the statement was made would rely on it. The hearer must then have reasonably relied on the promise and also been harmed because of that reliance."
I highly doubt (I have 25 years in real estate, banking, and counterparty risk) that the banks "reasonably relied" on Trumps' valuations. Real estate developers make shit up all the time, and big banks do independent appraisals. Trumps egregious valuations are not the worst I've seen. But this is why we have due diligence teams and an army of lawyers looking over every major deal.
James is an classic example of "show me the man, I'll show you the crime." Any real estate developer could be prosecuted under this flimsy NY law and I wont be surprised to see (more) businesses leave NY as a result. On the flip side, they see Hunter Biden get a sweetheart gun deal. Oh, and whats going on in Atlanta with those two "prosecutors" is a complete disgrace.
When the Supreme Court puts Trump back on the ballot 9-0, his supporters hear "he was right when he called it a witch hunt." And if that 350 million verdict gets overturned...
So: reactance. GOP voters see "persecution" not "prosecution" and this galvanizes support. As in "look, the Democrats are throwing everything they can to stop him, we must support him because our freedoms are being taken away." Classic reactance, followed by 9-0 vindication.
Thank you for the pointers to reactance theory. Some related thoughts:
1. To what extent does it explain support for the candidate?
So the median (primary) voter treats the Supreme Court's reversal of the Colorado Judgement on the grounds that Art 14 Sec 3 should be read as restricting state autonomy, and while they may disqualify candidates from state office they may not do so for federal office -- a lot-off of as technical a nature as a guilty verdict based on the NY statute not requiring reliance -- as vindication of a witch hunt? i.e. a reversal is proof of a witch hunt, so is a conviction, so is the mere existence of a legal proceeding? This was a disagreement on Constitutional grounds and that has now been resolved, but fine, if you want to see a witch hunt you may.
2. "And if that 350 million verdict gets overturned..." This is a good falsifiable hypothesis. i.e. If it is _upheld_ on appeal then the median or at least the marginal voter should change their mind? I somehow doubt this :)
3. The prosecution stemming from "I just want to find 11,780 votes", fake electors, etc. is also a witch hunt that triggers reactance because of whatever is alleged about the DA?
Trump had a sizable lead from day 1 -- yes there was a jump in Apr 2023 following the NY indictment, but it only accelerated an upward trend rather than reversing a flat or downward trend, and the line only moves one way except for a small dip following the GA indictment.
Such explanations are more parsimonious, and also generally explain Orban, Erdogan, Bolsonaro, and any number of other such figures.
We are left in the following state:
Soundly defeat the candidate at the polls -> "the polls are rigged" -> try to undo the results of the election
Prosecute the candidate for crimes -> either "absolute immunity" or "witch hunt" -> the institutions should overlook law breaking
The burden of preserving institutions of liberal democracy is already unfairly put on one side. Further, these institutions need to walk on eggshells to prevent hurting the delicate sensibilities of the supporters?
I think the institutions need to act in self defense against this assault, and reply with the full force of law, they need to "get Capone on tax evasion", if thats what it takes.
Adam qualifies as genius if the test is one who can hold contradictory ideas without going crazy as either Emerson or FScott Fitzgerald said. The Court did not apply the law and Constitution, its sworn duty, and violated principles of textualism and originalism, their sole basis for preventing gun control, abortions, voting rights, etc. so people who think the rule of law and Constitution are important, once called conservatives but now called nerds, are appalled by the cynicism and hypocrisy of the decision. To his credit Adam in effect concedes the legal analysis underlying these concerns but makes a highly persuasive defense of the decision on what used to be called pragmatic grounds, but denigrated as “consequentialism” by Scalia, Thomas, Alito, et al. If Adam is right can we at least expect them to fess up and for example conisuder in allowing gun control that consequences can include machine gunning grade school children in Uvalde? Or is the only consequence they recognize as in Bush V Gore when they did the same thing, the right of Republicans to get elected?
Frankly, I have no idea who you are or how I ended up subscribed to your substack but this is the best and most important piece I've read on Trump v. Anderson.
If you want another angle at this guy’s brilliance, check out the audio of him arguing at the Supreme Court! You won’t regret it. Archive here:
https://www.oyez.org/advocates/adam_g_unikowsky
'Statesmanship' may not be the most apt framing of this decision.
Why is it, Adam, that the only 'practical consequences' evidently of concern to you and so many other commenters are ramifications of disqualification of a candidate pursuant to the constitution, and never the candidacy of one who grossly violated his oath in attempting to overthrow our constitutional order?
I'm prepared to accept SCOTUS' ruling--which appears dangerously close to nullifying Section 3--regardless of whether I agree with it, because I support this constitutional order, and Trump supporters ought to be equally prepared to accept a SCOTUS ruling that Trump is ineligible.
Another take on statesmanship here: https://stevevladeck.substack.com/p/70-the-three-biggest-problems-with?utm_campaign=email-half-post&r=83rl2&utm_source=substack&utm_medium=email
And, in a related vein, Adam, I would suggest that you seek to avoid bolstering your argument by casting aspersions on unnamed "progressives" and "supporters of the Colorado Supreme Court’s decision" whom you accuse of inconsistency in their thoughts. If there's a specific meaningful example you have in mind, cite to it. There will always be someone out there who thinks or says something dumb or hypocritical, but that doesn't mean it merits the attention of the rest of us. You cheapen your commentary by resort to this approach.
> If New Yorkers want to get guns off the streets, who cares whether Sir John Knight was acquitted of violating the Statute of Northampton in friggin’ 1686? Likewise, if the America of 2024 is best off permitting the election to proceed in an orderly fashion, shouldn’t we be able to just do that?
Doesn't this effectively turn judges into legislators? The theory is that legislators make laws, and judges just clear up any edge cases in existing laws. If judges are allowed to overturn old laws, that makes them strictly more powerful than legislators, who have to go through a more involved process to get laws changed.
100% correct. It's obvious that SCOTUS couldn't issue a decision that disenfranchised 75 million voters on the only vote they care about (President), and also obvious that SCOTUS couldn't allow inconsistent standards for disenfranchising voters in different states for the presidential election.
So they came up with this. It's fine. It does the job. And "getting the Constitution right" is not the singular value in constitutional adjudication. It never has been. (E.g., all stare decisis arguments are about the fact that it's better to have coherent rules than to be absolutely "right".)
It doesn’t disenfranchise voters to disqualify an ineligible candidate. If Trump were not a natural born citizen we wouldn’t let him run even if 75 million people wanted him to. That’s a ridiculous argument.
If someone took your vote away for President based on a claim that you disagreed with, you would not say "i am fine, I can still vote for the candidates that John Roberts has given me permission to vote for."
You would say your vote was stolen away, and you might join civil unrest until your right to choose YOUR candidate was restored. And you would be right to.
It’s also ludicrous to say we can’t have different standards in different states. The way to get on the ballot differs wildly by states. If Trump gets a certain number of signatures, he’s on the ballot in one state, but the same amount may be insufficient in another. Nobody says that’s disenfranchising him or his voters.
I recognize they’re not exactly the same thing. But the states already have different rules and determinations for different elections. It wasn’t a problem until an insurrectionist ran for President.
It's not only not only the same, it's 180 degrees different. States will NEVER exclude a candidate with 75 million voters basee on filing deadlines and if they did the courts aren't stupid and would put the candidate back on.
I absolutely would not be right to, not if my candidate was ineligible. I might not understand or realize that, but it would be the case.
If you want to make a practical argument that the risk of civil unrest was too great fine, but don’t dress it up as some righteous cause or defending democracy. Trump is ineligible and everyone knows it.
Trump voters aren't required to agree with you that he is ineligible. That is the thing about SCOTUS. They can rule something, but they can't force the public to accept it.
If John Roberts makes a ruling and then 75 million Trump voters make America unliveable until he is put on the ballot again the fact that you think their constitutional interpretation is wrong is irrelevant.
Sure. But don’t talk about “disenfranchising 75M Americans.” They aren’t disenfranchised any more than I am because I can’t vote for a 26 year old President.
The VOTERS get to decide for themselves whether they are disenfranchised. Your opinion is irrelevant to the equation, as is Roberts, Sotomator, anyone in Colorado, et al. 75 million Trump voters see persecution, and would consider themselves disenfranchised. That's all that matters.
Nope. AWFUL comparison. One thing is unarguable- age. The other is TOTALLY contested.
You need to have some empathy. If the Supreme Court, or your state, disqualified Biden, or whoever you are voting for, as an insurrectionist, would you say "I totally retain my franchise."? Of course not.
This is indeed disenfranchisement. It's taking away the vote of 75 million people, not 10 people who want to vote for a 26 year old. Based on a standard nobody agrees on. And that's why you can't do it.
Absolutely. If 5 unelected Justices tried to strip me of my right to vote for Joe Biden, I would absolutely join continuous street protests and aim to shut down the American economy until my franchise was restored.
And I would be right to do so. You don't have 4 or 5 elites screw with 75 million people's votes for President, and the people who brought this suit never understood that.
You guys are convinced that "engaging in insurrection" is some indisputable, objective precise term that everyone agrees on and thus the 75 million people who support Donald Trump for President are just going to say, "you know what, you are right, we agree, our preferred candidate engaged in insurrection" and that if they don't accept what liberals and the left and Never Trump Republicans define as the vague term of "insurrection" they are somehow being unreasonable and deserve to lose their franchise.
And that's just not something they are required to accept. I wouldn't accept it.
One of the things you have to accept if you want to live in a democracy is that there's no God to adjudicate political disputes. If lots people disagree with you, the "rightness" of their opinion doesn't matter one bit. They get the same vote you do.
Trying to swoop in with 5 unelected judges to say "we'll solve this, we'll just take their preferred candidate off the ballot and that will end the whole thing" is both completely loopy and incredibly disrespectful of your fellow citizens' fundamental right to think differently about Donald Trump than you do.
And yes, if you take 75 million people's votes away, you may reap the whirlwind, entirely properly. And I'd rather we have to live with an allegedly "wrong" interpretation of the Constitution than get killed in street violence over some stupid purism over the disputed, hopelessly vague term "insurrection".
I don't have any trouble with states being able to decide disqualification for state offices, or even for federal offices (like representative and Senators) that impact only the voters in that state for a particular office that is only applicable to that state. I do have a problem with allowing different states to come to different conclusions about an over-arching position--which is pretty much the presidency. How to fit that into the 14th Amendment?
I have no clue, of course. The problem is in the Amendment itself and its historical background. I doubt that the drafters ever contemplated a president who was an insurrectionist while in office. The only way to make the distinction is, ironically, the very weak argument that the word "office" doesn't mean President, which clearly makes no grammatical sense given all the other places that role is described as an "office."
The drafters had a clear target in mind--those who had actually seceded and fought. One can't blame them for not foreseeing an acting president himself trying to undo an election he just lost.
The difficulty with allowing states to decide for themselves on disqualification of a presidential candidate is chaos, but legal chaos, not the simple fear of Civil War 2.0. The key problem is what "insurrection" means in the absence of Civil War 1.0--that could be wildly different, leaving the country with no way to have an election that everyone COULD agree was "fair." I suspect that this is why the concurring liberal justices concurred instead of dissented. Some states could find that BIDEN committed insurrection by TAKING office despite the "Steal." They would be wrong--but the GOP is certainly in the business of pursuing what "impeachable" means. Can we have a situation where a state could bar a candidate without evidence? What would happen if "evidence" becomes so loosey-goosey as to allow wildly different interpretations of what IT means?
Basically, unfortunate drafting results in impossible interpretation no matter which way you go. The drafters simply didn't consider the difference between state-wide offices and the nation-wide office of president.
I am with the concurrence that the court had no business telling Congress what KIND of law they had to pass. I hope when Congress gets around to it, they will pass a law that MAKES the state/nation-wide distinction clear. Right now, I don't see how the 14th Amendment can rationally be applied to nation-wide office.
1. IIRC, when the 14th amendment was adopted, senators were chosen by their state legislatures. That certainly should support the notion of states being able to DQ insurrectionizers from the Senate. I don’t recall that point coming up in any of the millions of words written over this case.
2. Per the Amar Brothers’ amicus brief, a major impetus for Sec 3, along with that war, were the considerable efforts made by incumbent confederate-sympathizing federal office holders to prevent Lincoln from taking office in 1861, in ways strikingly similar to 2020~21.
You are right about the dating of the Amendments but I'm not sure how it is relevant. Senators have other duties too, like approving Supreme (and other) court nominations, or voting on impeachments. I don't think anyone has ever argued that those are the prerogatives of the states.
I didn't read the briefs you mention, but I have read that only 8 people were ever actually disqualified under paragraph 3. Does the brief describe who they were and who actually did the disqualifying? And were the efforts in 1861 considered insurrection? Or just the 1861 version of seditious conspiracy?
None of this speaks to my main concern, about the havoc that could arise about the very MEANING of evidence should some state decide to define insurrection as something a president (here, Biden, but any president) actually didn't do, but the state decides s/he did.
I can see that State A might want to decide that Senator X engaged in insurrection and disqualify him as not worthy to represent the state. That only affects State A. The trumped up evidence issue could arise if State B decides Senator Y committed insurrection; there would be differing definitions of insurrection. But voters in State C, D, and E wouldn't have the choices of their candidate (by definition not a Senator in A or B) affected by what state A and B did.
Lord knows, I wish the court had said "well, the facts show it was indeed and insurrection and so we have to apply the disqualification across the board." That would be hard given the posture of the case. Does anyone know why the plaintiffs didn't sue in FEDERAL court for this disqualification--that would have let (or forced) the federal courts from District on up to deal with the root issue, particularly if a suit in a different federal court in a different circuit came to the opposite conclusion after a trial.
Yeah, idk. The opinion was hastily crafted and edited, and released unpolished before Super Tuesday. That state courts can't disqualify federal candidates without express delegation but can disqualify state candiates sounds about right to me: Do we want Texas or Florida disqualifying Biden (yes, that would happen)? Or worse: Do we want Alabama to decide that the sitting Senator from California is disqualified and refuse to follow laws Future Senator Shiff votes on? Any other decision by the Supreme Court would be the 16th Amendment controversy on steroids.
States run elections, but cant impose additional federal qualifications. Disqualification standards for Federal elections need to be uniform and objective (including the standard of evidence for a crime like insurrection). The Constitution imposes uniform standards. That's not "statesmanship," thats common sense. Is that explicitly written in the Constitution? Probably not to the degree of precision that satisfies the legal nerds who get paid by the word to obfuscate, but who cares. The whole point of a federal constitution is uniform federal standards. Some things are just obvious and dont need to be explicit.
Legal nerds can dress it up in whatever legal jargon and gobbledygook is the flavor of the day.I am sure many cv's were padded by the SSRN papers generated by this case (unironically, the SC cited none lol). The Supreme Court was never going to disqualify the candidate of choice of 75 million people on legal pencil shavings.
I personally wanted to see Trump defeated the old fashioned way, at the ballot box, in the primary, through the ancient alchemy of persuasion, a lost art in the halls of academia. Unfortunately, Democrats lawfare only enhanced and galvanized his support.
In the very last sentence there, you take away agency from Republican primary voters. Prosecution for various alleged crimes with all the due process rights that everyone else is entitled to, is sufficient to force _support_??
Yes: the psychological term is "reactance." https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4675534/
Its fairly easy to dismiss everything getting thrown at Trump as partisan (no I am not a fan of Trump but try to see the opposite side). For example, the 350 million verdict against Trump in New York may be correct as a New York legal matter (read the opinion, its instructive, he wildly inflated the value of Mar-a-Lago, and there are others).
But (and this is an important but) the NY statute apparently does *not* require that the Laetitia James' office prove reliance, a central element of any criminal fraud case. Reliance means "The speaker must have also intended that the person to whom the statement was made would rely on it. The hearer must then have reasonably relied on the promise and also been harmed because of that reliance."
I highly doubt (I have 25 years in real estate, banking, and counterparty risk) that the banks "reasonably relied" on Trumps' valuations. Real estate developers make shit up all the time, and big banks do independent appraisals. Trumps egregious valuations are not the worst I've seen. But this is why we have due diligence teams and an army of lawyers looking over every major deal.
James is an classic example of "show me the man, I'll show you the crime." Any real estate developer could be prosecuted under this flimsy NY law and I wont be surprised to see (more) businesses leave NY as a result. On the flip side, they see Hunter Biden get a sweetheart gun deal. Oh, and whats going on in Atlanta with those two "prosecutors" is a complete disgrace.
When the Supreme Court puts Trump back on the ballot 9-0, his supporters hear "he was right when he called it a witch hunt." And if that 350 million verdict gets overturned...
So: reactance. GOP voters see "persecution" not "prosecution" and this galvanizes support. As in "look, the Democrats are throwing everything they can to stop him, we must support him because our freedoms are being taken away." Classic reactance, followed by 9-0 vindication.
Thank you for the pointers to reactance theory. Some related thoughts:
1. To what extent does it explain support for the candidate?
So the median (primary) voter treats the Supreme Court's reversal of the Colorado Judgement on the grounds that Art 14 Sec 3 should be read as restricting state autonomy, and while they may disqualify candidates from state office they may not do so for federal office -- a lot-off of as technical a nature as a guilty verdict based on the NY statute not requiring reliance -- as vindication of a witch hunt? i.e. a reversal is proof of a witch hunt, so is a conviction, so is the mere existence of a legal proceeding? This was a disagreement on Constitutional grounds and that has now been resolved, but fine, if you want to see a witch hunt you may.
2. "And if that 350 million verdict gets overturned..." This is a good falsifiable hypothesis. i.e. If it is _upheld_ on appeal then the median or at least the marginal voter should change their mind? I somehow doubt this :)
3. The prosecution stemming from "I just want to find 11,780 votes", fake electors, etc. is also a witch hunt that triggers reactance because of whatever is alleged about the DA?
Trump had a sizable lead from day 1 -- yes there was a jump in Apr 2023 following the NY indictment, but it only accelerated an upward trend rather than reversing a flat or downward trend, and the line only moves one way except for a small dip following the GA indictment.
https://projects.fivethirtyeight.com/polls/president-primary-r/2024/national/
There are any number of studies on why the support for this candidate exists, for example: https://www.npr.org/2021/07/11/1015120444/study-looks-at-what-motivates-trump-supporters
Such explanations are more parsimonious, and also generally explain Orban, Erdogan, Bolsonaro, and any number of other such figures.
We are left in the following state:
Soundly defeat the candidate at the polls -> "the polls are rigged" -> try to undo the results of the election
Prosecute the candidate for crimes -> either "absolute immunity" or "witch hunt" -> the institutions should overlook law breaking
The burden of preserving institutions of liberal democracy is already unfairly put on one side. Further, these institutions need to walk on eggshells to prevent hurting the delicate sensibilities of the supporters?
I think the institutions need to act in self defense against this assault, and reply with the full force of law, they need to "get Capone on tax evasion", if thats what it takes.
Adam qualifies as genius if the test is one who can hold contradictory ideas without going crazy as either Emerson or FScott Fitzgerald said. The Court did not apply the law and Constitution, its sworn duty, and violated principles of textualism and originalism, their sole basis for preventing gun control, abortions, voting rights, etc. so people who think the rule of law and Constitution are important, once called conservatives but now called nerds, are appalled by the cynicism and hypocrisy of the decision. To his credit Adam in effect concedes the legal analysis underlying these concerns but makes a highly persuasive defense of the decision on what used to be called pragmatic grounds, but denigrated as “consequentialism” by Scalia, Thomas, Alito, et al. If Adam is right can we at least expect them to fess up and for example conisuder in allowing gun control that consequences can include machine gunning grade school children in Uvalde? Or is the only consequence they recognize as in Bush V Gore when they did the same thing, the right of Republicans to get elected?
😂