SCOTUS Watch: Insurrection Enabling Edition

Orders   

As expected, the Order List was no drama. Gorsuch recused without saying why. Only Kagan and Jackson explain themselves. I'm unsure of the last time Sotomayor had an opportunity. Maybe, she will follow their lead. 

Thomas (with Alito) dissented regarding a college speech dispute which the justices determined moot. Jackson (following a policy she flagged earlier) dissented from the procedural approach used. Amy Howe has more. 

A lot is going on this week (Nikki Haley winning yesterday's D.C. primary fits the busy week in D.C.). This is true in a fashion in the lower courts. Two major ongoing matters are trans-related lower court opinions and the Fifth Circuit making a mess of things. 

The other orders dealt with the Fifth Circuit.  The Fifth Circuit let a Texas law come into effect (which it will soon if not stopped) involving Texas pretending it can run national border policy. Justice Alito held things up temporarily by granting an administrative stay. He will look it over. 

Trump v. Anderson 

The Supreme Court is out for a mini-break until next week (3/15). On Sunday, it suddenly noted there was possibly going to be an opinion today.  This is usually done on the Friday before at the latest.  Likewise, the justices (at least since they started to do so after the COVID break) nearly always (don't know the last time they did not, putting aside the COVID period) announce from the bench. They specifically said they would not.  

People were correct to predict the case was going to be the Colorado insurrection case that kept Trump off the ballot. Two other states were in the process of following.  The Colorado primary is tomorrow though the results are not final and voting has already begun. The justices were around last week so could have announced it in person.

The oral argument alone reaffirmed the assumption that there was no chance the justices were going to uphold the Colorado Supreme Court. In passing, I think the main advocate defending the ruling was not firm enough. He had a hopeless case, to be blunt, so you had to let it all out. Did not.

The question was how and how many. The main opinion (an unsigned per curiam) basically was a combination of the two likely arguments. A specific state could not on its own keep a president (they stretched it to federal officials generally) off the ballot. That alternative is a mess. That was up to Congress. And, they had to specifically enforce it. That's the no self-executing argument. 

Barrett would have simply said the states could not enforce the third section of the Fourteenth Amendment against presidential candidates. She would say no more. So, nothing about other candidates (consider state legislatures used to select senators) or how the federal government should enforce. 

The liberals/Democratic appointees (some court watchers want us to emphasize this) went further. They accepted that states could not enforce it regarding presidents. They also appealed to federalism and the mess of different states on their own doing this.  That's dubious.

The Reconstruction Amendments “were specifically designed as an expansion of federal power and an intrusion on state sovereignty.” [citation] Section 3 marked the first time the Constitution placed substantive limits on a State’s authority to choose its own officials. Given that context, it would defy logic for Section 3 to give States new powers to determine who may hold the Presidency. 

The Reconstruction Amendments are implied to be merely about limits on states. They are not.  

Slavery is banned everywhere, including the federal territories. Federal offices are involved (look at this very case!) in the Insurrection Clause. 

The opening grants birthright citizenship to a certain group of people. That limits federal power too, particularly over blacks who are now birthright citizens with national rights against all.  

There are really no "new" powers here. States have broad powers to run presidential elections. This very well -- a bugbear of the justices here -- can significantly influence the results. For instance, the ability of a third-party candidate in a closely divided swing state to be on the ballot. Bush v. Gore, anyone? Ballot design and counting techniques also can be essential. 

I would suppose a state can still keep a thirty-four-year-old or someone who doesn't meet residency or citizenship requirements off the ballot. The 14th Amendment provides one more requirement. 

[ETA: The "substantive limits on a State’s authority to choose its own officials" bit is also questionable. Could states set up mini-kingdoms with governors passing along family lines? 

Sounds like a banned title of nobility. The guarantee of a republican form of government sets forth a basic limit on the states. Don't need to go back that far. Section One itself limits the state. Can states say only white people can be state officials? The opinions are pathetically weak on this point.]

It is not as the per curiam notes a "penalty" either. 

The joint concurrence (usually court opinions have one author) notes this concerning presidential electors. Does the opinion in this case reduce this power? After all, before a state legislature could assign electors based on whether the candidate was an insurrectionist. The system in place furthers a decentralized process of presidential selection.  

I said it was a joint concurrence. Mark Joseph Stern by a bit of nifty detective work found evidence it was originally a partial dissent by Sotomayor alone. 

We are left to guess what changed. The tone often does sound like Sotomayor. Barrett criticized it for being "strident."  The fact it was not a dissent at all gave cover ala Bush v. Gore ("7-2") that "nine" agreed with the result. Did the liberals get anything for that? [ETA: if so, was it worth it?]

The concurrence is a tad "strident" about the controlling opinion requiring specific congressional enforcement mechanisms to enforce the amendment provision. The anger is shown by references to Dobbs (abortion) and Bush v. Gore. Roberts' criticism in Dobbs for the conservatives there going further than necessary is cited. This would be even more harsh if Roberts was the actual author of the per curiam. 

The concurrence reminds us that other Reconstruction Amendments, including the rest of the Fourteenth Amendment, are self-executing. 

The majority's "rules" are not totally clear (the whole opinion is only 13 pages). Is a law banning those convicted of insurrection from federal office (cited by the per curiam) even enough? It was passed six years before the amendment was ratified and does not follow the same rules (no previous oath required).*  

They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.

The main opinion flags how the provision arose from the Civil War context. So, it is appreciated that "further insurrections" is referenced here. 

We are left to wonder why therefore states cannot enforce it like they could enforce the ban on slavery or even this very provision as applied to state officials. Some vague (and selectively applied) federalism or prudential concerns. 

The main opinion says:

States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.

So, do states have the power to enforce Section 3 respecting state officers? I thought it was so shocking to argue that the Fourteenth Amendment "expanded state power"! Oh. They say states have power over their own government. 

I move past the fact that Justice Thomas (who shouldn't be taking part here given the role of his wife in the events) in an earlier case cited (U.S. Term Limits) dissented, and strongly argued state power here included setting qualifications in federal elections. States very well have the power to regulate federal elections in various respects. And they do so. The ongoing federal caucus and primary process underlines this.  

The main opinion cites the congressional power to lift the disqualification by a supermajority vote. That power applies to both state and federal offices. The opinion grants states can disqualify state officials. 

By doing so, they make it harder for Congress to pinpoint lifting disqualification (let's say only after a person is elected, making it more necessary to do so). Why is it "implausible" that states can do that as compared to not allowing federal candidates (like a person too young, as Judge Gorsuch agreed to in a past case) to run for office? 

Anyway, we are left wondering why Chief Justice Roberts went this route when the result was a divisive 5-4 split. It doesn't help that people can point to them not even showing up to announce. 

The opinion does not even settle all disputes. By giving Congress the power to enforce, pathways are left for challenges after the election. I question the "if Trump wins" scenarios. But, to the extent this might come back, the path is of limited value. 

The opinion also seems to leave open the ability of each House of Congress to not seat someone they determine is disqualified. Since no Democrat even raised the point at the beginning of this Congress -- even though multiple Democrats suggested one or more members were very well disqualified -- this seems a tad academic. 

I do appreciate the opportunity for the liberals not to just go along. I dissent from the fact there was not a clear dissent. This is also not about me "wishcasting" that the Supreme Court will "save us." It is how blatant the whole thing is.

The Trump immunity case underlines the point. The Court is making it harder for the criminal process to occur. Normal elections factor in the fact that a candidate is a felon. For Trump, special rules are in place to help him along. 

The main opinion here went further than necessary to reach its result. Small favor that a route is left open to broadly allow disqualification of state officials. OTOH, it's harder to block insurrectionists from federal office. This applies to any number of unelected offices that some future Administration might provide to the "martyrs" involved here.  

The opinion is also hypocritical given this Court's general wariness of congressional enforcement of these amendments. State's rights were quite important in Shelby County v. Holder, even if the enforcement of the Fifteenth Amendment was involved. "What did you expect, they would keep Trump off the ballot?" doesn't swipe all of this away.

I know that we have to worry about beating Trump and company at the polls. The opinion is still bad. And, I was around during Bush v. Gore. The Supreme Court was quite selective about worrying about state procedures that might affect presidential elections. 

Last week, the Supreme Court without comment rejected multiple challenges to an execution. There is as much of a federal constitutional interest in due process for all that the federal courts are specifically there to protect (insulated by de facto life tenure) as Congress has here. 

Idaho then botched the execution. The Supreme Court didn't do its job that well this morning either.  

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* A few people are annoyed that Jack Smith did not charge Trump with violating this law. I am left to believe that he did so because it might be hard to obtain a unanimous criminal conviction under it beyond a reasonable doubt.  

Section Three is not a "penalty." It does not require a criminal conviction to be enforced. The indictment alleges facts that overlap what has historically been understood to be insurrection activities. 

Anyway, the Supreme Court is slow-walking the Trump criminal case. If we finally get a conviction, he will then appeal. Merrick Garland could have sped things up over a year and the whole process could have taken years. 

The Supreme Court did not even firmly decide that the president is a "federal official" under the terms of the amendment. I think they obviously are but then I find the reasoning of the opinions here asinine. Would an insurrection prosecution be enough?

I think this whole thing is a sideshow.