The justices, wanting to restore Trump to the ballot, didn’t address the underlying question of if he incited an insurrection
Elena Kagan once referred to Jonathan Mitchell sarcastically as “some genius”. That was in oral arguments surrounding SB8, the bounty-hunter abortion ban that Texas succeeded in passing before the overturn of Roe v Wade, which Mitchell wrote, pioneering a cockamamie scheme for evading judicial review.
Mitchell, a far-right lawyer currently vying for a spot in the second Trump administration, is a fan of this kind of bald, legal bad faith: you can’t quite call him duplicitous, because he never quite pretends that the law really leads him to the conclusions he’d like to reach. He’s more about coming up with novel legal schemes to get to his desired outcome and trusting that the federal judiciary, captured as it is by Federalist Society acolytes and wingnut cranks, will go along with him because they share his political proclivities.
That’s what worked for him with SB8: the supreme court allowed Texas’s abortion ban to go into effect long before Dobbs: not because Mitchell made a convincing argument, but because he offered them an opportunity to do what they wanted to do anyway.
Something similar happened in Thursday’s oral arguments in Trump v Anderson, a question about whether Donald Trump is disqualified from holding federal office under section three of the 14th amendment.
Okay I’m going to say it. This is a really bad opinion piece on what actually happened yesterday. The biggest thing that stood out was this.
SCOTUS is not a fact finding court in this case. I don’t think I can say this enough and geez has this been some very basic facet that lots of people have missed: “Did Trump commit impeachment or not? The Supreme Court DOES NOT RULE ON THAT.”
The best way to think of what came before SCOTUS yesterday was this question: “Does Colorado have authority to execute section 3 of the 14th Amendment?” That’s the question. Not, “did Trump commit treason?” I don’t know why this continues to be a missive for commentators on this case. What’s being argued is how much power is indeed vested into States for their election. This is why when the question was actually asked “did Trump commit insurrection?” Justice Jackson spoke and then that was the last anyone heard about it. Because it’s a moot point for what is before the court.
I get we want to toss this treasonous slime ball into jail. But every case that exists with him isn’t boiling down to this aspect. There are times when we have to have separate cases to establish different things that eventually build up to that. We’ve not really had something like this before and so new things need good foundations. So a treasonous President is going to spawn lots of SCOTUS cases that ask questions about the foundations of different arguments.
If you listened to the Justices yesterday, you could tell in their voice that none of them felt comfortable with the entire case in general. Because this has massive ramifications. For all the justice that people want, a bad call with poor foundations makes it insanely easy for future people to rampantly abuse this. Multiple times various justices hinted at how Florida is just chomping at the bit to charge Biden with treason and how even if they know they’ll lose, they’ll use every method of litigation to drain his election funds. And SCOTUS gave every hint that Congress does not have the Judicial setup to handle that and likely because of the political ramification, Congress would just kick the can until we’re literally fighting each other.
— Article III Section 1 US Constitution
Congress gets to mold the Court system as they see fit and SCOTUS was indicating, the Courts cannot do this “feature of federalization” that Colorado was attempting to indicate. That States should be allowed to apply limitations as they see fit and have the Courts figure out the collateral damage. And it’s highly likely that Congress wouldn’t act to fix it so that the Court could. And so bad faith actors would absolutely wreck the election process. And what they were looking for was a reason why they should believe otherwise. That Congress would enact something to punish bad faith actors, or setup the Courts to handle this, or create procedures that could be litigated at the State level, or literally anything outside of the one thing in Title 18 that’s for criminal treason.
I get that nobody likes that answer. It shitty to see that most Justices easily see that Trump did indeed commit treason and that the various Courts are just left with “oopsie Congress forgot to give anyone any power to do anything about it.”
And yeah, let’s talk about Bush v Gore, because that sounds outright like the same thing.
Here, Bush indicated that different counties in Florida were using different methods for the recount because of the hanging chad issue. Here it was the 14th Amendment Section 1, Equal Protection Clause. SCOTUS had ruled that the various counties couldn’t come up with various standards for a recount, that there needed to be a common standard, to which Florida and Gore couldn’t come to single standard for the recount. It wasn’t a question of “who won Florida” it was a question of “how do we have a unified standard for which a recount of this nature can be done?” And the answer was (and this is the part that was controversial) we couldn’t and still make the “safe harbor” date. The “safe harbor” date and ensuring we made it was the biggest debate point. To which for those still sour about that, you have The Electoral Count Act of 1887 to thank for putting SCOTUS into that position.
All the anger that gets directed to SCOTUS, and some of it is rightly so, Elections have a lot of Congress induced defects. Keep that in mind.
And just to make clear. This doesn’t mean, “Oh no the Constitution has a defect and thus we’re helpless Trump is going to surely win now!” It means that when we come across unclear parts of the Constitution, we don’t obtain clarity easily or within a very short period of time. We have always known this. This is the part that should have you all upset about those Senators that didn’t disqualify Trump during his second impeachment.
We all knew, that the Senate kicking the can, kicked it into a darker alley with less illumination on what exactly we’re all supposed to do. We knew when they punted on that, it was going to get murky on how to hold Trump accountable for what he did. That should have been the most upsetting part.
And so here we are. We’re having to do the murky part. It’s not going to be easy, there are no slam dunks, you will hear “de novo” a lot because all of this is new ground, Congress was supposed to handle this and didn’t. So now we’re going to have to go the very frustratingly long path. No court wants to hand a nuke to the Republicans but every bad call that the court’s could make can potentially just wreck things. That’s how big a deal all of this is. One bad call and we are bad footing.
So yes, I get it, SCOTUS hasn’t inspired the greatest of confidence. You’ll hear no argument about that from me. But yesterday’s en banc hearing, that was not on display. I’m giving credit where credit is due, this is something that was being talked about very carefully yesterday by the Justices. I know everyone wanted a slam dunk, but this shit ain’t it. There’s going to be no slam dunks with this issue. So anyone convinced of such, really needs to get a firm grasp of reality of what’s in front of us. Trump’s bullshitty lawyers likely think this is all a joke, but the rest of the system is not laughing. This is serious stuff. There’s not going to be any easy answers.