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.
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.