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SCOTUS will announce opinions on Monday "on the homepage."
But the "Court will not take the Bench."
At some point this morning, the Supreme Court updated the announcements for tomorrow, Monday, March 4:
The Court may announce opinions on the homepage beginning at 10 a.m. The Court will not take the Bench.
I don't recall seeing such a notation before. Other than during the COVID-period, merits opinions are announced from the bench. And emergency docket opinions are posted on the web site without any advance warning to the public. (The press may get a heads-up.) But here, we have advanced notice of a decision without a bench handdown.
Could this be the Section 3 case? Colorado will hold its primary on Tuesday, so a ruling on the insurrection matter on Monday would be just in time.
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Could this be the Section 3 case? Colorado will hold its primary on Tuesday, so a ruling on the insurrection matter on Monday would be just in time.
Eh. The ballots have already been printed, I believe with Trump on them based on a sample I found online: https://gilpincounty.colorado.gov/media/9526
A ton of people have presumably already mailed in and early voted. I’m not sure, on a practical basis, how much getting this sorted before Colorado election day really matters. It’s not like it’s certified day of anyway, there’s always a lag period. That being said, the Court should always just post opinions online, announcing merits decisions from the bench is just a now-pointless tradition.
It has no *practical* effect for the reason you note, but that’s been apparent almost from the beginning. It would not have been possible to reprint and resend ballots, even if the Court had ruled the day after argument.
However, there is an appearance issue here, which might factor into the Court’s decision to schedule this: by announcing the day before the primary, they avoid the appearance that they have forced the issue by *not* deciding in time. I say “might” because it isn’t clear to me that one state’s primary election is more important than getting the overall answer right — especially as Illinois and others start to pile on. But if the Court knows, internally, that it is going to reverse Colorado because the initial vote was clear, then there is some optics value in deciding before primary election day.
The “practical” part is there may be some people who don’t mark Trump because of the possibility it won’t be counted if the Colorado Supreme Court is upheld. Will there be enough that do that to change the results? Almost certainly not. And they definitely won’t impact whether he wins the nomination generally. Nevertheless, it is still something.
I don’t think there is much danger of that, Colorado GOP voters like in most GOP primaries are “broken glass” Trump voters.
“That being said, the Court should always just post opinions online, announcing merits decisions from the bench is just a now-pointless tradition.”
Start going down that road, soon we’ll be saying that wearing robes is a pointless tradition.
They could hold oral arguments by computer like in the pandemic. It could be audio only so they wouldn’t have to wear robes…or anything else.
Josh, do you have a link to this announcement?
Go to supremecourt.gov. Scroll down to the calendar and click on March 4.
It would make sense to announce the Section 3 decision while the Monday Open Thread is in full swing, and the court knows that a large cohort of constitutional experts will be standing by to comment.
King of comedy.
The good news is that no matter which way the Court rules, the “I Told You So’s” will be a’comin!
My guess — what I have suspected for some time — is that they are going to throw ALL of this out as moot because Trump actions could not reasonably be considered constituting “an insurrection” and base it on the “directed to” part of Brandenburg v. Ohio.
The only thing that Trump is accused of, when you get right down to it, is not trying to stop a riot quickly enough — and where is there a legal duty to stop a riot in the first place?
This is a simple decision, based on a precedent that the left likes, and I could see Kegan signing onto it on the basis of supporting Brandenburg.
But the freaky freakies are going to freak — and hence you don’t let them into the building…
It’s a stone building, it won’t burn. Short of heavy equipment or high explosives — and someone who knows how to use them — it’s not going to be possible to damage the building. There aren’t any windows to break, are there? So as long as they can’t get in….
Among other failings, Dr. Ed doesn’t know what moot means.
It’s like a cow’s opinion.
OK, I used the word wrong — I will admit it.
But you know what I meant….
IMHO, that’s part of the problem with the legal system today — anyone with an IQ above 12 knows what I meant and so what if I used the wrong words?!?
IANAA and don’t even KNOW what the RIGHT magic words are for saying “toss both this and the DC criminal prosecution into the trash because there is no crime here” but I somehow suspect you understand what I mean.
May not like it, but do understand it.
Care to place a bet? I predict SCOTUS will not reach the merits of whether Trump engaged in an insurrection as defined in 14.3. Nor will they reach the merits of whether Jan 6 constituted an insurrection.
It does not have to if it decides that S3 does not apply to the President.
That would be a decision on the merits
I did not say “will not reach the merits.” I said “will not reach the merits of whether Trump engaged in an insurrection.”
There are many possible legal theories under which SCOTUS could overturn the Colorado Supreme Court decision. Literally the only one that it’s guaranteed that SCOTUS will not pick is, of course, the one that Dr. Ed thinks of.
But at least you can understand it.
Don’t deny that…
Yep. While I certainly think the decision could point out that the Colorado courts’ fact finding was deficient there is no chance SCOTUS will find its own facts.
But do we expect the Supreme Court to defer to the Colorado district court as a finder of fact?
I think we expect the Supreme Court to not reach, or opine on, any factual issue at all.
And in terms of optics, if you think that trashing the Capitol looked bad, I assure you that Middle America is NOT going to look favorably on an attack on the SCOTUS building.
So what if they didn’t have one for the majority of our country’s history, only getting it 90 years ago. So what if the decision does or does not make legal sense. A lot of Democrats consider SCOTUS holy and attacking its temple won’t play well in Peoria…
My guess is that Roberts knows this. He summers on Hupper Island in St. George (ME) and I know how well it wouldn’t play down there…
What attack on the Supreme Court building?
The Orange Man Bad Brigade upon learning that SCOTUS has ruled “against” them.
If SCOTUS bluntly says that Trump committed no insurrection and that there is no grounds to presume he did, the left won’t be happy.
And what do they do when they are not happy???
Another bet: there will be no attack on the Supreme Court building.
If my religion didn’t object to betting, I’d take that one.
Scotus tossing the “Insurrection” and the Orange Man Bad brigade behaving themselves? Not likely…
The MAGA religion forbids betting? Because I can’t think of any other religion that allows mass murder of civilians.
Guess you never heard of Islam.
“The MAGA religion forbids betting”
I am a Puritan and my religion forbids betting because you are inherently asking the devil to intercede on your behalf to win — with you then owing your soul to the devil in exchange.
You don’t have to believe this, but you could at least respect it because it is as firmly established as other religions have a ban on eating pork. Pork which won’t physically kill you….
Only “Betting” I occasionally do is the Hospital NFL Playoff “Pool” where you pick the winners of the Playoff games, without point spread, and then the corresponding Super Bowl Winner, with a predicted score to serve as a tie breaker….
Closest I came to winning was Super Bowl LI, Falcons in front 28-3, how could I lose….?
Frank
The Puritan religion is OK with mass murder of civilians?
In support of Dr. Ed 2’s claim to be a Puritan, he has previously been hysterical about actual witches threatening him.
Heh. I had forgotten or missed that mini-thread.
There isn’t even a “Puritan religion,” which is how full of it Dr. Ed is. Puritanism was a movement within the Anglican church, not an actual religious denomination. There are churches that could be said to have descended from the Puritan movement — very few of, it’s safe to say, that would be acceptable to the original members of that movement — but there’s no such thing as being a Puritan.
Millions of Jews can
SCOTUS will rule for Trump, but will weigh in on whether he engaged in an insurrection. Will there be an attack?
Of course, I meant to write “but will not weight in …”
Ask Steve Scalise
Where was the attack on the Supreme Court building after the Dobbs decision? I think more people who don’t like Trump were upset about that than the question of whether Trump is on any ballot.
The death threats for judges mostly come from the MAGA types.
Did you already forget about Nicholas John Riske?
https://www.cnn.com/2022/07/27/politics/kavanaugh-roske-arrest-warrant/index.html#:~:text=Nicholas%20John%20Roske%2C%20charged%20with,court%20on%20June%2022%2C%202022.
One case completely contradicts the word “mostly”, according to uniquely smart person CountmontyC.
Of course, that guy turned himself in before actually killing anyone. Unlike Roy Den Hollander, who actually killed a federal judge’s son and injured her husband, and who reportedly had Justice Sotomayor as a target.
Okay how about months of trying to burn down the Mark Hatfield federal courthouse in Portland, Oregon by BLM/Antifa rioters?
Still ignoring that most politically motivated violence is from the right.
Months of left wing riots in 2020, James Hodgkingson attempting to assassinate Republicans at a baseball game, the aforementioned Nicholas John Riske, anti-Semitic attacks by left wing affiliated Hamas supporters, the January 20, 2017 riot by left wingers at Trump’s inauguration.
It’s possible that the Court tosses the disqualification on 1st Amendment grounds.
The Colorado courts’ had an awful 1st Amendment analysis that the Court could use. The Colorado Courts relied substantially on that terrible analysis to determine that Trump committed an insurrection.
Given how the arguments at SCOTUS shaped up in the briefs and then at oral arguments, I think this is unlikely.
It’s more likely that the case gets tossed on other grounds.
“It’s possible” in the same metaphysical sense that it’s possible the Justices will come out for their next scheduled oral argument dressed as furries. It’s not realistically possible in the real world, because that was not one of the issues argued, and it was barely even briefed.
No, it cannot be because this issue was not brought up during the oral argument.
It is the Section 3 case and it will be per curiam. That’s my prediction.
I can’t see them getting Brown Jackson on board.
In any case. we will all know in less than 15 hours from now.
Justice Jackson showed sympathy for Blackman’s “office/officer” argument during oral arguments.
“Brown Jackson”? Did you also call RBG “Bader Ginsburg”?
Can I call her “Dumb DEI”?
We have a first amendment, so you can. You’re a racist, so you probably will. You’re not self-aware enough to realize how stupid you are, so you probably shouldn’t.
Let’s hope she doesn’t end up as “Worst Ginsburg.”
“Worst Ginsburg” would probably be Douglas Ginsburg, aka Captain Toke.
Unsurprisingly, Sotomayor is the Justice most likely to dissent.
I could easily see an 8-1 decision. Perhaps a short per curiam with dueling concurrences leaving everyone unsatisfied.
Should there be a ruling (9-0) that Trump remains on the ballot in Colorado (and other states) the gnashing of teeth will be epic.
The Democrat/Communist/Socialist party will scream that the Court is illegitimate and the only cure is for Thomas and Alito to step down else they will pack the Court with six more justices to “even things out”. It will matter not that other justices join the Roberts’ opinion, it will be taken as evidence that the Court is corrupt due to Thomas especially and the protests/riots/burning of cities will commence.
Also, CNN and MSNBC will have their top legal teams (Luttig will be in big demand) on their “America in Crisis” panels to declare “orangemanbad”.
A 9-0 ruling would make it very hard to claim the Court is illegitimate.
Josh, you seem to think that those people think rationally.
That can be a fatal mistake to make. I speak from experience here — do NOT presume they are rational — that is the one thing which you absolutely must never do!!!!
Perhaps if you are their role model.
.
That assertion, like much of what you write here, seems silly.
There were a few people who were so gung ho on the felling that Trump personally led tHe Insurrection®™ and was disqualified.
It is relatively easy to develop reasonable arguments for several resolutions. There also are practical and partisan factors involved.
They might if they lean heavily on the 14th being a limitation on states rights, and not a grant of power to states in federal elections.
I’m thinking they want the whole nightmare to go away, which it will if they rule that — regardless of EVERYTHING ELSE — Trump did not commit an “insurrection” and hence they can toss the whole mess into the trash can.
You are not thinking, and there is — as I said — literally zero chance that they rule that way.
“Federal elections?” Article II gives states — that’s right, states – full power over the appointment of Presidential electors. States appoint the electors. Their appointment is a state matter. The only limitation the 14th Amendment imposed on that power is that states’ appointment procedures have to comply with Due Process and Equal Protection.
Trump didn’t bother to claim that either was violated.
If oral arguments are any indication, we are about to find out how SCOTUS will conclude, absent Congressional legislation, states cannot exclude presidential candidates from the ballot.
The most minimalist ruling would be that the presidency is not an “officer of the United States.” This would exclude exactly one person from the insurrectionist disqualification — Donald Trump — because anyone else to whom it would conceivably be applied would’ve taken an oath for one of the qualified positions (Congress, officer, state legislator, state executive or judicial officer). This would definitively resolve the issue with respect to Trump, but would not require SCOTUS to resolve any of the other issues.
“Not self-executing” is superficially appealing, in that it doesn’t write A14S3 totally out of the picture but instead tosses the ball into Congress’s court,¹ but the problem is, that would require them to explain why A14S3 is different than every other provision of the 13th, 14th, and 15th amendments governed by the same “Congress shall have power to…” language.
¹They could also say that Congress already hit that ball, with § 2383, but it’s really hard to take seriously an argument that a statute that does not match the requirements of A14S3 was an attempt to enforce A14S3.
it’s really hard to take seriously an argument that a statute that does not match the requirements of A14S3 was an attempt to enforce A14S3.
Why would a statute need to “match the requirements” of A14S3 ?
So long as it covers the requirements in respect of some potential targets, it can be – to that extent – implementing legislation.
If it has other bits that don’t match A14S3, then those bits have to be justified by reference to some other Congressional power, and may fail if they don’t.
And if it fails to hit all the possible targets of A14S3 then those possible targets are in the clear – for now.
It would need to match the requirements of A14S3 to constitute an attempt to enforce A14S3.
It doesn’t. A14S3 says, “People who have all of characteristics X, Y, and Z” are disqualified. § 2383 says, “People who have characteristics X and Y” are disqualified.
Imagine a condo which has bylaws saying, “1. Owners who have both cats and dogs aren’t allowed to live in the building.
2. The board may prescribe rules to enforce this ban.”
Now imagine a board (perhaps decades later!) enacts a rule saying, “Owners who have dogs aren’t allowed to live in the building. Inspections will take place on a monthly basis, and if a dog is found, the offender will be given one week to get rid of the dog or be forced to move out or sell.” Would some of the people affected by this rule be people who were already disqualified by the relevant bylaw? Yes. Would this rule be reasonably described as an attempt to enforce that bylaw? No; it’s so different from the bylaw rule that it couldn’t reasonably be thought of that way, even if one of the words (“dog”) happens to be the same. It’s just a rule the board felt like enacting. Maybe it had authority to do so, maybe not. But it’s unrelated to the bylaws.
Just as the clock ticks down, how about not self-executing only for the presidency, but self-executing for non-federal offices and unresolved for other federal offices?
I almost got it! It’s not self-executing for all federal offices.
That’s my guess as well. If the Court reverses on that basis, I’ll be insufferable.
I think we’ll see the strongest amount in favor of the position taken in In Re Griffiths: Section 5 does not implicitly confer power to the states to enforce the 14th Amendment. Might be limited to just Section 3 like with the “sword” vs “shield” dichotomy that Prof Blackman speaks out. We’ll see.
As the only national office, the presidency, states can not prohibit one from being on a ballot for extraordinary reasons not proven in court.
A14S3 does not explicitly include the presidency ; it matters not whether the presidency is an officer or not. Subjecting the presidency to less than all others listed in A14S3 can be argued ; there is no possible means to conclude such would be valid, that it includes the presidency and the vice presidency.
SCOTUS may have a simple answer, but it would be better to address A14S3 directly, purposely, and completely so, however, it seems unlikely.
Primary elections are not state matters for which discretion is allowed other than for mere basic requirements, such as filling fees and whatnot. Primary elections are a service for which states offer, but they need not do them, for there is no compelling reason to expend state funds for “private” entity purposes.
P.S.
That primaries do not place a direct vote for a candidate is more reason one can not be excluded from a ballot for extraordinary reasons not first proven in court.
It was proven in court. Colorado held days of hearings on the matter and everyone got to present evidence.
I don’t think the SC is buying what you are selling.
But did Colorado hold an extended evidentiary hearing?
Must be a problem with AlGores Internets, your documentation seems to be missing. Don’t bother embarrassing yourself with a reply
I could see the Court going beyond that. Some of the Justices were asking questions that may indicate that the 14th Amendment doesn’t apply to just the Presidency, but rather that States have no power under the 14th Amendment to disqualify any candidate for federal office. That’s a function for Congress- to disqualify their own members, or to write laws that allows for disqualification and removal of office of other federal officials.
That is consistent with the Supremacy Clause.
There is no history of states deciding the qualifications of federal officials.
Even when state legislatures appointed Senators, if a Senator later turned out to be disqualifed, the state lacked authority to remove the Senator. Only the Senate, which enforced its own rules, could do that.
There absolutely is. States have for millennia excluded people from the ballot who did not meet the constitutional qualifications.
The pundit Cenk Uygur is putatively running for president in 2024, despite not being a natural born citizen. (He has claimed the natural born citizen requirement is unconstitutional; that’s either delusional or (more likely) performative.) And numerous states have excluded him from their ballot on the grounds that he isn’t constitutionally eligible.
For millenia ? Rome has joined the Union ?
I still say that the simplest is to rule that Trump did not commit an Insurrection and hence all of the other stuff doesn’t matter.
That actually makes sense.
Who are you, and what have you done with Dr. Ed 2?
Frank
Maybe you should say it a few more times.
It’s still not going to happen.
Colorado Case is a clear “Fo-Fo’ Violation
“The United States shall guarantee to every State in this Union a Republican Form of Government…”
That’s Article 4, Section 4, for those of you ed-jew-ma-cated in US Pubic Screw-els.
10th Special Forces Group at Fort Carson is an hours drive away, like was done with Little Rock/Birmingham, deploy Federal Troops to stop Civil Rights Violations, take the violators into custody.
Don’t even want the Colorado Surpremes to be summarily Executed, ADX Florence is 108 miles South, Life without Parole will give them ample time to rue their Tyranny.
Frank
I am going to agree with a few other commentators and predict that they will rule that J6 is was not an insurrection, ignore everything else Trump did in the weeks before J6, and decline to say anything on the core issues. The dissent will be something like “Dude he did and attempted coup, of course he is disqualified. My esteemed colleagues are bat shit crazy.” The MAGAs will claim Trump is exonerated and the rest of us will be confused.
What would Trump’s actions in the weeks before J6 have anything to do with tHe Insurrection®™?
Do you think an insurrection is something that just appears spontaneously?
Of course not.
So why would you ask what his pre-J6 actions could have to do with it?
Well, if J6th wasn’t an insurrection, what relevance does anything he did before then have? If there wasn’t an insurrection he can’t be guilty of insurrection.
My prediction, for what it’s worth, is that they’ll rule that the sole present route to Section 3 disqualification of federal candidates is a criminal conviction for insurrection.
They did not rule that.
I thought they ruled Congressional legislation is required for enforcement and the only current vehicle is §2383 (the other vehicle, the Enforcement Act of 1870 has been repealed).
Sorry, typed too quickly as I had to dash. That’s arguably what they said for the presidency, but not all federal candidates. I don’t think they ruled out Congressional refusal-to-seat disqualification for Congressional candidates.
Colorado, through their anti-democratic judicial decision, has made the state irrelevant to the Republican primary. Hopefully Monday’s announcement from SCOTUS will be on some obscure administrative law issue.