As we have reported, two big questions hung over today's oral arguments in the ballot-access case involving Republican frontrunner Donald Trump and Colorado: (1) Did Trump engage in an insurrection or rebellion on Jan. 6? (2) Does SCOTUS, in its current disheveled state, have the courage and integrity to apply constitutional law correctly?
After today's oral arguments, the answer to both questions appears to be no. That means Trump, clearly an insurrectionist based on the events of Jan. 6, 2021, will get a free pass into the general election -- and maybe beyond. That leaves us with this problem: Anyone connected to the legal profession is unlikely to say it -- but I'm a journalist, not a lawyer, so I will say it -- this morning's oral arguments signal that we have a compromised U.S. Supreme Court. And that is a polite way of saying some, maybe all, of the justices, are crooked -- so much so that they cannot rule correctly on a simple provision of law -- Section 3, 14th Amendment of the U.S. Constitution. A first-year law student should be able to get that right. That the SCOTUS justices apparently are not going to get it right -- suggests to me that they are acting intentionally, meaning they probably had determined how they were going to rule on this case before the first word was spoken this morning.
What does that mean? For one, it means Trump, who incited, or engaged in, an insurrection or rebellion on Jan. 6 -- with millions of Americans watching on television -- would be put in charge of the very government he sought to obstruct. That is the very thing Section 3 is designed to prevent; it would be like putting Jefferson Davis, president of the Confederacy, in charge of the post-Civil War U.S. government. That is a prospect that should trouble all Americans, no matter their political leanings
What can we as everyday citizens try to do about a high court that has gone off the rails? Can we attempt to sue the justices? Can we seek to have criminal charges brought against them? We will address those questions in a moment, but first, let's examine what happened in oral arguments this morning, based on an account from Politico, under the headline "How the disqualification argument got attacked from all sides; Across the ideological spectrum, justices seemed dubious." Write reporters Zach Montellaro and Kyle Cheney:
Oral arguments wrapped a few minutes ago, and the court seemed incredibly skeptical of the attempt to keep former President Donald Trump off the ballot.
Broadly, justices across the ideological spectrum fretted about the idea of letting individual states make a call on whether a presidential candidate should be disqualified for engaging in an insurrection, worried that it could create a chaotic electoral map where candidates are disqualified in some states but not others — and that other states could disqualify rivals in retribution.
The hearing largely did not address Trump’s culpability for the Jan. 6 attack on the Capitol.
That last sentence, highlighted in blue, is stunning. If the justices did not address Trump's culpability, doesn't that mean a major question is unanswered? Wouldn't it have made sense to ask questions leading to an answer about whether Trump, as a matter of law, engaged in an insurrection. In my view, this adds to the evidence that the justices had reached a conclusion on this case before oral arguments started. Here is more from Politico:
There’s no timeframe for when the court will issue a ruling, but the court has moved quickly throughout the case. Here’s where the court’s ideological factions stand:
There were few, if any, surprises among the group of justices that make up the court’s furthest-right flank: Clarence Thomas, Samuel Alito and Neil Gorsuch.
All three expressed deep skepticism about the challenges to Trump’s ballot eligibility and warned of the parade of horribles that would ensue if individual states were permitted to decide which presidential candidates were insurrectionists, absent a clear national standard passed by Congress.
They were expected to be the most obvious supporters of Trump’s position, and their questions backed up that prediction. But they weren’t alone…
So how did the liberal justices react to the idea of essentially giving Trump a "Get Out Of Jail Free" card? They seemed OK with it, Montellaro and Cheney report:
The conservative trio that has served as the court’s median — Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett — also seemed keen on removing this call from individual states. That’s a grim sign for the Colorado challengers, as Roberts, Kavanaugh , and Barrett were considered the conservative votes that most plausibly could have been in play.
“The whole point of the 14th Amendment was to restrict state power, right?" Roberts asked at one point.
Perhaps most surprisingly, two of the court’s three liberals — Justices Elena Kagan and Ketanji Brown Jackson — also seemed unwilling to let states make this call.
“I think the question that you have to confront is why a single state should decide who gets to be president of the United States,” Kagan said at one point. “In other words, this question of whether a former president is disqualified for insurrection,” she continued. “It sounds awfully national to me.”
Justice Sonia Sotomayor is the lone exception — she was not particularly active once it became clear which way most of her colleagues were leaning.
Later in the day, Politico produced a followup under the headline "5 key moments that portend a Trump victory at the Supreme Court; Here are the justices’ most revealing comments from the two-hour hearing." Montellaro and Cheney report:
Hours after proceedings ended, Justice Elena Kagan spoke at the Library of Congress, where she was interviewed by Justice Jeffrey Sutton, the chief judge of the 6th Circuit U.S. Court of Appeals.
“Another slow day at the office?” Sutton asked, prompting laughter from the audience. The interview took place as part of the Supreme Court Fellows Program.
“Yeah,” Kagan replied. “Everybody is laughing, so they must know what I did this morning.”
Sutton pointed out that the date for their talk had been scheduled in the fall, before the oral arguments in the 14th Amendment case had been set.
“You know that because if they hadn’t, I would have said no,” Kagan said.
"Well, and it says so much about you,” Sutton added.
“That I didn’t cancel,” Kagan said.
While Kagan managed to find humor in the hours after the proceedings had concluded, other moments were relatively tense:
During Shannon Stevenson's turn at the lectern, the justices continued to voice grave concerns about a patchwork of state decisions on whether a candidate can be disqualified. Both Chief Justice John Roberts and Justice Amy Coney Barrett returned to this theme. It's another signal that the court is skeptical of the idea that states have broad authority to enforce the insurrection clause on their own.
Colorado Solicitor General Shannon Stevenson downplayed concerns that a ruling in one state to disqualify a candidate for president under the 14th Amendment would have a ripple effect across the country, disqualifying the candidate in every state. She said such a ruling wouldn’t necessarily carry over to other states.
“There is a huge amount of disparity in the candidates that end up on the ballot in different states in every election,” Stevenson pointed out. She described that as “a feature of our process, not a bug.”
A lot of skepticism from even the liberal justices on this challenge, from many angles. Here's Justice Ketanji Brown Jackson: “Why didn't they put the word president in the very enumerated list in section three? The thing that really is troubling to me is I totally understand your argument, but they were listing people that were barred, and president is not there.” A lot of the pushback from the justices has been on individual states making a disqualification call, but it is beyond that.
Jason Murray, representing the Colorado voters, completed his argument after an hour at the lectern.
The final lawyer arguing today is Shannon Stevenson, the Colorado solicitor general. Stevenson is representing Secretary of State Jena Griswold, who is charged with enforcing the state's election laws.
Stevenson filed a brief in the case urging the justices to affirm the Colorado decision that deemed Trump disqualified. She is arguing that state officials have the authority to exclude a candidate from the ballot if that candidate is deemed ineligible by the state’s courts.
Here is more from Politico, under the headline "Momentum shifts in Trump’s favor as justices seem hostile to disqualification effort:
The Supreme Court appeared to sharply veer against the Colorado voters challenging former President Donald Trump’s eligibility to run for office.
Justices on both the left and right raised pointed questions to Jason Murray, the lawyer arguing in favor of Colorado's position, about the “extraordinary” ramifications of letting individual states decide whether a candidate is an insurrectionist.
Chief Justice John Roberts said that would essentially empower individual states to exert unilateral control over federal elections, a position “at war” with the notion that the Constitution’s 14th Amendment was intended to empower the federal government to constrain wayward states. He was quickly followed by Justice Elena Kagan, who said permitting a single state to effectively tip the entire national election would be an “extraordinary” ruling.
The tenor of the questions suggested the court was leaning heavily against those seeking Trump’s removal from the 2024 ballot, and seemed inclined to overturn the ruling of the Colorado Supreme Court that deemed Trump ineligible to be president again. The justices appeared hostile to the notion that states could be the arbiters of the 14th Amendment’s “insurrection clause,” a post-Civil War amendment intended to bar former Confederate leaders from holding office.
The challengers argued that Trump ran afoul of this clause by stoking violence on Jan. 6, 2021, when thousands of his supporters ransacked the Capitol and many attempted to block Congress from certifying Joe Biden’s victory. But the justices repeatedly worried that permitting states to determine Trump’s eligibility could lead to consequences that could unravel the republic.
Roberts said states could adopt different standards, relying on disparate evidence, to remove various candidates from the ballot. Justice Samuel Alito asked whether military commanders could disobey orders from a commander-in-chief the moment they determined that a president engaged in an insurrection.
“I would expect that a goodly number of states will say: ‘Whoever the Democratic candidate is, you're off the ballot,’” Roberts said. “That's a pretty daunting consequence.”
Was the justices' skepticism a surprise? Not to many legal experts:
The odds seemed stacked against the challengers even before the hearing began, with legal experts anticipating hostility from the justices that cut across partisan lines. Thursday’s questioning seemed to confirm that view.
Not only were conservative justices sharply critical, the court’s liberal justices also worried aloud about the impact of the ruling.
“My question is why the framers would have designed a system that would — could — result in interim disuniformity in this way?" Justice Ketanji Brown Jackson said.
Justice Samuel Alito drilled down on a previously unaddressed clause of Section 3 of the 14th Amendment: one that applies to someone who has “given aid or comfort to the enemies” of the United States. Alito asked attorney Jason Murray to consider whether the 14th Amendment should disqualify a president who authorizes the distribution of funds to a country that “proclaims again and again and again” that the United States is its enemy.
Justice Neil Gorsuch can often be the most prickly justice during oral arguments, sometimes growing impatient with lawyers who try to avoid answering his questions directly. He just expressed some exasperation with Jason Murray, the lawyer for the Colorado challengers, as Murray was attempting to parry a barrage of hostile questions from the bench.
“Please don’t change the hypothetical, OK? I know, I like doing it, too. But please don't change the hypothetical,” Gorsuch admonished Murray.
Chief Justice John Roberts continued his skeptical line of questions toward the lawyer for the Colorado challengers, worrying aloud about the “plain consequences” of a ruling in their favor.
Roberts said that if Colorado were permitted to strike former President Donald Trump from its ballot, it would unleash a tit-for-tat where red states would respond by kicking President Joe Biden off their ballots.
“I would expect that a goodly number of states will say: ‘Whoever the Democratic candidate is, you're off the ballot,’” Roberts said.
“That’s a pretty daunting consequence.”
Chief Justice Roberts may have tipped both his — and perhaps the whole court’s — hand.
Amid a series of sharp questions by the conservative justices for those seeking Trump’s disqualification, Roberts made plain that he does not buy the conclusion that the 14th Amendment was meant to permit states to determine whether a candidate was an ineligible insurrectionist.
"The whole point of the 14th Amendment was to restrict state power, right?" he asked.
It’s “a position that is at war with the whole thrust of the 14th Amendment,” Roberts said, noting that the position would have empowered the former Confederate states to weigh in on whether a candidate is disqualified from holding federal office.
The 14th amendment was passed to constrain states’ rights and empower the federal government, Roberts said, and is “the last place you’d look for authorization for the states, including Confederate states, to enforce the presidential-election process.”
Justice Brett Kavanaugh immediately picked up on Roberts' question, reinforcing the point in a line of skeptical questions to the lawyers for the Colorado challengers.
The skeptical questions from Roberts and Kavanaugh are not a good sign for the challengers, because those two justices are considered the challengers' most gettable votes among the court's conservative majority.
Justice Elena Kagan followed up suggesting it would be “extraordinary” for a single state to effectively influence the entire nation’s presidential election.
Justice Sonia Sotomayor grilled Trump's lawyer on his interpretation of the insurrection clause's scope — an interpretation, Sotomayor noted, that seemingly would “benefit only your client.” It's “a bit of a gerrymandered rule,” Sotomayor suggested.
Jonathan Mitchell, Trump's attorney, seemed to receive a warm reception from the court:
During a relatively friendly line of questioning, Justice Brett Kavanaugh pressed Mitchell on whether a person could conceivably be prosecuted under the federal insurrection law and — if convicted — automatically disqualified from holding office.
Mitchell said generally, yes, but not in Trump’s case. That’s because the ex-president has contended he’s immune from federal prosecution for the actions he took as president, particularly as they relate to his effort to subvert the 2020 election.
It’s notable because Trump’s attorneys have described an exceedingly narrow set of ways that a former president could be disqualified from holding office under the Insurrection Clause. Now, they say, one of those avenues is not an option.
Trump is expected to go to the Supreme Court as soon as next week to argue that he is immune from criminal charges related to his effort to overturn the election in 2020, yet another Supreme Court showdown that could dramatically influence the result in 2024.
It took an hour for a justice to really ask Jonathan Mitchell, Donald Trump's attorney, whether what Trump did on Jan. 6 was an insurrection. Mitchell said that what happened was “a riot, not an insurrection,” an argument they have repeated in lower courts. This was quite literally the last question posed to Mitchell!
We've found no reports that Jason Murray, lawyer for the Colorado voters was treated with such warmth:
Jason Murray, representing the Colorado voters, completed his argument after an hour at the lectern.
The final lawyer arguing today is Shannon Stevenson, the Colorado solicitor general. Stevenson is representing Secretary of State Jena Griswold, who is charged with enforcing the state's election laws.
Stevenson filed a brief in the case urging the justices to affirm the Colorado decision that deemed Trump disqualified. She is arguing that state officials have the authority to exclude a candidate from the ballot if that candidate is deemed ineligible by the state’s courts.
As for our question posed earlier: What can ordinary citizens do about a rogue Supreme Court? First, judges at all levels can almost never be sued for actions in their judicial capacity. That means a lawsuit probably is not a good idea. What about criminal charges? Contrary to what Clarence Thomas and Samuel Alito might believe, judges are not above the law and can be criminally prosecuted.
Reuters has published a series of articles, called "TheTeflon Robe," that exposed judges who violate the law and get off easily, especially in Alabama. Bottom line: It is possible to have criminal charges brought against a judge, but finding a prosecutor who will file such a case likely would be difficult.
Here is our question of the moment: Did members of the U.S. Supreme Court commit crimes today -- and were Donald Trump and his allies in on it?
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