Two Opinions
The Supreme Court released two more opinions on Thursday. We are left with a few accounts of people there since there is no video. There is not even audio (until Oyez.com eventually releases it) of these announcements.
Gorsuch wrote a unanimous one holding a statutory right to sue regarding the Fair Credit Reporting Act. Sotomayor had another upholding a lesser standard for whistleblowers to meet in another context. Alito (with Barrett) added a concurrence while also supporting the opinion. Yawn.
Insurrection Orals
On January 6, 2021, a mob of insurrectionists forced its way into the U.S. Capitol building and congressional office buildings and engaged in acts of vandalism, looting, and violently attacked Capitol Police officers.
The big news was the oral argument in the case challenging Colorado's blocking Trump from the ballot. New York's election officials (the two Republicans deciding the matter by law) for now allowed him on. It is now up to the courts. If we even have a primary since it will be obvious by then who the nominee is.
A few professors might want have convinced themselves that there was doubt but we knew how this was going. The question was how and by how many.
The joker here was Justice Jackson promoted the "president is not an officer as a democracy protective argument" (since it is apparently in doubt) bullshit. Really, Ketanji?*
Kagan was concerned that Colorado was deciding this question for the nation. They really aren't. States also have the power to decide qualifications that can turn elections and control of Congress or the presidency.
Kagan wrote the faithless electors case noting the power states have over electors. The state legislature can choose the electors. One of the two cases even came out of Colorado. Lots of painful moments.
The Slate duo correctly sneers at Chief Justice Roberts' concern about judicial humility NOW. Toss in some historical confusion, including not a word (unless I missed it) about how state legislatures used to select senators.
Roberts made a comment about how the Fourteenth Amendment was about limiting state power. This is the author of Shelby v. Holder, which limited congressional power to protect voting rights in the name of federalism.
The Fourteenth Amendment is ultimately about protecting rights and stopping any attempt to corruptly limit Lincoln's "new birth of freedom." States have a role. The very provision here applies to state and federal officials.
I put a bit of blame here on the advocate (regarding the senators thing) though he did reference how different ballot procedures in the 19th Century made things different from today. Justice Thomas, who supposedly cares about history, didn't seem to care.
I'm still disgusted Vice President Breckinridge, later a Confederate general and Cabinet officer has gone down the memory hole. The "not an officer" dodge covers vice presidents too.
Toss in Gorsuch's typical smarminess, including some scenario about Trump's immediate disqualification causing problems since then everything he did at the end of his term can be challenged that is a bogus concern.
(Griffin's Case, the circuit decision by Chief Justice Salmon Chase getting so much attention, itself provides a means to address the matter.
Simply put, everything an official suddenly found unqualified did does not automatically become void. This rule applies in various contexts, including marriages.)
He didn't want to hear about other qualifications but we could think of some scenario where we found out a supposed president is not a natural-born citizen after they were in office too. He also tied his former clerk in knots by some "office" angels on a pin parsing.
Appeals to a dubious atypical Chief Justice Chase circuit opinion might want to recall his position on legal tender (unconstitutional) or the Slaughterhouse Cases (in dissent). Or we have appeals to democracy from a justice nominated by a person who received a minority of the vote.
Other than pushing back from excesses of the Trump lawyer, including a state being unable to remove someone who blatantly admits being an insurrectionist, he had a rather easy time of it. This is so even though he repeatedly led with his worst arguments.
Justice Sotomayor was the only justice who showed some hint of not going with the herd. Please, write a separate opinion, if not a dissent, to not let the "reasonable" punt totally off the hook. Well-meaning justices like Kagan or Jackson will be tainted by the effort.
The avoidance mechanism here might be something that somehow passes the smell test, but there was a lot of stink in today's argument. Historians and others have spelled out what the Fourteenth Amendment provision was intended to do. So little of this history was respected during the oral argument.
The provision results in some messiness, including fact-finding issues of each state. But, again, states have power over electors, voting, and ballot eligibility in numerous ways that result in that. And, the Supreme Court has to deal with similar matters. They should not try to "gerrymander" (as Sotomayor noted) this one situation as an avoidance mechanism.
As the state lawyer noted, that is a feature, not a bug. But, by then (as SCOTUSBlog noted) the justices were not really paying attention. The state was given ten minutes since the challengers were voters (Republicans and independents). The state had its own interest.
Congress has the overall power to enforce the amendment in ways that are the supreme law or even to lift the disqualification. Congress, including when controlled by Democrats, didn't want to do either.
But, it is not really up to the Supreme Court to save them. We might not be a "mature democracy," but we don't have a mature Supreme Court either.
I also often remind people that things are complicated. There is a shame of credit and blame. A basic responsibility here is that Congress did not take this provision seriously.
As one expert notes, the Supreme Court's concerns could have been addressed by national legislation. We can note (like for other provisions of the amendment; no enforcement to have due process rights or something) it should not be necessary. The point holds. I will point out the inaction on emoluments too.
We knew where this was going. We still should not give them a pass. The fact that the first question was posed by Justice Clarence Thomas, whose wife was involved in the "Stop the Steal" efforts underlines this.
An ethical Supreme Court would have decided this with eight justices. Why could they not rule 7-1 or whatever? Again, each justice is part of the conspiracy now. Too many people resigned to or even supportive of the result, will blandly let it be. They too, in their fashion, will be enablers.
Let's see if they figure out to say "not our job" in the least pathetic fashion possible. And, how many people at least will be a bit upset about it.
Next Week
There are no oral arguments next week. The next conference (along with a non-argument public session) is next Friday.
No conference today means no scheduled Order List on Monday. Nonetheless, we can have other news. Nonetheless, the Trump immunity D.C. Circuit ruling goes into effect on Monday unless SCOTUS acts. So it has a big decision to make.
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* Justice Jackson's view of history often can provide a useful perspective. History is going to be part of the story.
But, "Just So" stories can show up on both sides. Her account here had too much of that.
There were better ways to punt the case than an appeal to "democracy" when the provision is in place to advance it. Along with most if not all of the other justices, she is too much concerned with her own view of the best result.
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