Your prediction of SC reaction to the CO disqualifying Trump ruling?

[David Hume]

Let's pray for at least 3.

One possible scenario is the three appointed by Trump recuse, and Roberts joining the Dems.

[Dan the Roman]

They will rule that the 14th amendment reserves enforcement to Congress and the only provision Congress has made to declare a candidate ineligible for the office on the grounds of insurrection is impeachment. A two-thirds majority of the Senate can disqualify Donald Trump at any time, and until they do, no other court has the authority to do so.

[I spent the winter writing songs about getting better]

Seeing as how it was a 4-3 decision on a 7-0 D court, it wouldn't shock me if SCOTUS was unanimous striking it down although the liberals would likely dissent on the reasoning. My guess is the median decision written by Roberts or Kavanaugh basically states its Congress' responsibility to define "insurrection", Thomas and Alito writing some weird logic that says Trump didn't do anything wrong, Gorsuch probably relying on that "the President is not an officer of the United States" pedantry, ACB joining one of the conservative opinions and the liberals concurring and dissenting stating that Trump can't be barred just because he hasn't been convicted.

[Donerail]

They will rule that the 14th amendment reserves enforcement to Congress and the only provision Congress has made to declare a candidate ineligible for the office on the grounds of insurrection is impeachment. A two-thirds majority of the Senate can disqualify Donald Trump at any time, and until they do, no other court has the authority to do so.

Think it might be a little broader than that — Congress has legislated through 18 USC § 2383, which makes a candidate ineligible for office if convicted of insurrection. Any court could disqualify Trump if it convicted him of insurrection, but no court has done so, and there's no room for courts to declare people disqualified under the 14th Amendment outside the context of § 2383.

[David Hume]

They will rule that the 14th amendment reserves enforcement to Congress and the only provision Congress has made to declare a candidate ineligible for the office on the grounds of insurrection is impeachment. A two-thirds majority of the Senate can disqualify Donald Trump at any time, and until they do, no other court has the authority to do so.

Think it might be a little broader than that — Congress has legislated through 18 USC § 2383, which makes a candidate ineligible for office if convicted of insurrection. Any court could disqualify Trump if it convicted him of insurrection, but no court has done so, and there's no room for courts to declare people disqualified under the 14th Amendment outside the context of § 2383.

this is basically option 3

[SWE]

My guess is they'll call it a political question and say that Congressional action, as opposed to judicial rulings, is the proper enforcement mechanism for the insurrection clause

[Skill and Chance]

My guess is they'll call it a political question and say that Congressional action, as opposed to judicial rulings, is the proper enforcement mechanism for the insurrection clause

That raises the question of whether a house of congress can reject EV on this basis.

[President Johnson]

Gets overturned 6-3, along party lines. I don't eeven expect Roberts to side with the liberals here.

[Skill and Chance]

Gets overturned 6-3, along party lines. I don't eeven expect Roberts to side with the liberals here.

In addition to Roberts, I would be rather surprised if Kagan goes along with this.  Most likely, I think they find some way to reverse 9/0 without reaching the merits.  8/1 with Sotomayor as the dissenter also wouldn't shock me if it reaches the merits.

I would be pretty surprised if any of the conservative judges go along with this, but if there's a wildcard it would be Gorsuch with a concurrence about states' rights and the word "conviction" not appearing in Section 3 of the 14th Amendment. 

[NYDem]

It’s definitely getting overturned. The only real question is whether the court feels like punting or if it decides to set some definitive rules for disqualification going forward. I think they’ll rule that the 14th Amendment’s disqualification provisions require a conviction for a disqualifying crime under enabling legislation. Given Trump has not yet been convicted of any crime it would not apply to him.

The Colorado Supreme Court ruling is, aside from being stupid and anti-democratic, full of holes and easy to pick apart. Honestly I think it might be 9-0 on the Trump question specifically, though I can see the justices writing multiple different opinions on which standard (if any) should be set.

[SWE]

Gets overturned 6-3, along party lines. I don't eeven expect Roberts to side with the liberals here.

In addition to Roberts, I would be rather surprised if Kagan goes along with this.  Most likely, I think they find some way to reverse 9/0 without reaching the merits.  8/1 with Sotomayor as the dissenter also wouldn't shock me if it reaches the merits.

I would be pretty surprised if any of the conservative judges go along with this, but if there's a wildcard it would be Gorsuch with a concurrence about states' rights and the word "conviction" not appearing in Section 3 of the 14th Amendment. 

This is a case about the interpretation of the federal constitution. There is no plausible state's rights angle

[SteveRogers]

There’s a dozen different ways the Court could parse the question of how to enforce the insurrection clause of the 14th amendment. And we’re truly in untested waters, so any traditional doctrine or precedent that you might expect a particular justice to follow is pretty much out the window. But I think one thing that’s being overlooked in the shuffle here is that there’s a pretty strong textual argument that the clause doesn’t apply to the office of the President in the first place. So that’s your path of least resistance if the Court feels like nipping the whole thing in the bud.

[SteveRogers]

Gets overturned 6-3, along party lines. I don't eeven expect Roberts to side with the liberals here.

In addition to Roberts, I would be rather surprised if Kagan goes along with this.  Most likely, I think they find some way to reverse 9/0 without reaching the merits.  8/1 with Sotomayor as the dissenter also wouldn't shock me if it reaches the merits.

I would be pretty surprised if any of the conservative judges go along with this, but if there's a wildcard it would be Gorsuch with a concurrence about states' rights and the word "conviction" not appearing in Section 3 of the 14th Amendment.  

This is a case about the interpretation of the federal constitution. There is no plausible state's rights angle

On the contrary, the Constitution grants the states wide latitude in determining how their electors are appointed. So there is certainly a plausible argument that the states have the authority to adjudicate the qualifications of presidential candidates when it comes to policing their own ballots.

[SWE]

Gets overturned 6-3, along party lines. I don't eeven expect Roberts to side with the liberals here.

In addition to Roberts, I would be rather surprised if Kagan goes along with this.  Most likely, I think they find some way to reverse 9/0 without reaching the merits.  8/1 with Sotomayor as the dissenter also wouldn't shock me if it reaches the merits.

I would be pretty surprised if any of the conservative judges go along with this, but if there's a wildcard it would be Gorsuch with a concurrence about states' rights and the word "conviction" not appearing in Section 3 of the 14th Amendment. 

This is a case about the interpretation of the federal constitution. There is no plausible state's rights angle

On the contrary, the Constitution grants the states wide latitude in determining how their electors are appointed. So there is certainly a plausible argument that the states have the authority to adjudicate the qualifications of presidential candidates when it comes to policing their own ballots.

Colorado did not rule on that basis, that is not an issue at controversy here. Colorado cannot say the 14th amendment means a different thing in their state than it does elsewhere.

[SteveRogers]

Gets overturned 6-3, along party lines. I don't eeven expect Roberts to side with the liberals here.

In addition to Roberts, I would be rather surprised if Kagan goes along with this.  Most likely, I think they find some way to reverse 9/0 without reaching the merits.  8/1 with Sotomayor as the dissenter also wouldn't shock me if it reaches the merits.

I would be pretty surprised if any of the conservative judges go along with this, but if there's a wildcard it would be Gorsuch with a concurrence about states' rights and the word "conviction" not appearing in Section 3 of the 14th Amendment. 

This is a case about the interpretation of the federal constitution. There is no plausible state's rights angle

On the contrary, the Constitution grants the states wide latitude in determining how their electors are appointed. So there is certainly a plausible argument that the states have the authority to adjudicate the qualifications of presidential candidates when it comes to policing their own ballots.

Colorado did not rule on that basis, that is not an issue at controversy here. Colorado cannot say the 14th amendment means a different thing in their state than it does elsewhere.

Actually, the first question that the Colorado Supreme Court ruled on was whether or not the Colorado Election Code granted Colorado state courts jurisdiction to assess the qualifications of presidential candidates. They held that it did. Conversely, the Michigan courts just held that Michigan law does not authorize election officials to keep candidates off the (primary) ballot on the basis of Constitutional disqualification. There is no inherent contradiction here as these are questions of state law.

[Donerail]

There’s a dozen different ways the Court could parse the question of how to enforce the insurrection clause of the 14th amendment. And we’re truly in untested waters, so any traditional doctrine or precedent that you might expect a particular justice to follow is pretty much out the window. But I think one thing that’s being overlooked in the shuffle here is that there’s a pretty strong textual argument that the clause doesn’t apply to the office of the President in the first place. So that’s your path of least resistance if the Court feels like nipping the whole thing in the bud.

I struggle to imagine the Court going down that route. It does offer a possible off-ramp, but would Roberts, for one, really want to resolve this based on a strained reading of the Constitution that concludes the President is an office-holder but not an "officer" and the fact that the President swears to "preserve" the Constitution rather than "support" it? It gets you out of the immediate controversy, but it's also a prime example of why people hate lawyers.

[SteveRogers]

There’s a dozen different ways the Court could parse the question of how to enforce the insurrection clause of the 14th amendment. And we’re truly in untested waters, so any traditional doctrine or precedent that you might expect a particular justice to follow is pretty much out the window. But I think one thing that’s being overlooked in the shuffle here is that there’s a pretty strong textual argument that the clause doesn’t apply to the office of the President in the first place. So that’s your path of least resistance if the Court feels like nipping the whole thing in the bud.

I struggle to imagine the Court going down that route. It does offer a possible off-ramp, but would Roberts, for one, really want to resolve this based on a strained reading of the Constitution that concludes the President is an office-holder but not an "officer" and the fact that the President swears to "preserve" the Constitution rather than "support" it? It gets you out of the immediate controversy, but it's also a prime example of why people hate lawyers.

I agree that the “preserve” vs “support” argument is unpersuasive. But the bigger problem is that Section 3 specifically identifies electors for President and Vice President but omits the President and Vice President themselves, which requires us to read the presidency into “any office” in order to apply. It’s either a very odd or very intentional omission.

[SWE]

Gets overturned 6-3, along party lines. I don't eeven expect Roberts to side with the liberals here.

In addition to Roberts, I would be rather surprised if Kagan goes along with this.  Most likely, I think they find some way to reverse 9/0 without reaching the merits.  8/1 with Sotomayor as the dissenter also wouldn't shock me if it reaches the merits.

I would be pretty surprised if any of the conservative judges go along with this, but if there's a wildcard it would be Gorsuch with a concurrence about states' rights and the word "conviction" not appearing in Section 3 of the 14th Amendment.  

This is a case about the interpretation of the federal constitution. There is no plausible state's rights angle

On the contrary, the Constitution grants the states wide latitude in determining how their electors are appointed. So there is certainly a plausible argument that the states have the authority to adjudicate the qualifications of presidential candidates when it comes to policing their own ballots.

Colorado did not rule on that basis, that is not an issue at controversy here. Colorado cannot say the 14th amendment means a different thing in their state than it does elsewhere.

Actually, the first question that the Colorado Supreme Court ruled on was whether or not the Colorado Election Code granted Colorado state courts jurisdiction to assess the qualifications of presidential candidates. They held that it did. Conversely, the Michigan courts just held that Michigan law does not authorize election officials to keep candidates off the (primary) ballot on the basis of Constitutional disqualification. There is no inherent contradiction here as these are questions of state law.

Whether or not states can allow or not allow ineligible candidates is not up in the air, no, Colorado has a mechanism to remove ineligible candidates and Michigan does not. If the Supreme Court upheld Colorado's ruling, Trump would remain on the ballot in Michigan, because there's no reason a state can't allow an ineligible candidate on its ballot and nobody claimed they couldn't. But for Colorado's mechanism to kick in, the candidate has to actually be ineligible. That is a constitutional question that must have the same answer in each state. The Court cannot make a decision on whether or not the Colorado Supreme Court has authority to do this without deciding on the merits of the Insurrection Clause, which would be binding on all 50 states

[SteveRogers]

Gets overturned 6-3, along party lines. I don't eeven expect Roberts to side with the liberals here.

In addition to Roberts, I would be rather surprised if Kagan goes along with this.  Most likely, I think they find some way to reverse 9/0 without reaching the merits.  8/1 with Sotomayor as the dissenter also wouldn't shock me if it reaches the merits.

I would be pretty surprised if any of the conservative judges go along with this, but if there's a wildcard it would be Gorsuch with a concurrence about states' rights and the word "conviction" not appearing in Section 3 of the 14th Amendment.  

This is a case about the interpretation of the federal constitution. There is no plausible state's rights angle

On the contrary, the Constitution grants the states wide latitude in determining how their electors are appointed. So there is certainly a plausible argument that the states have the authority to adjudicate the qualifications of presidential candidates when it comes to policing their own ballots.

Colorado did not rule on that basis, that is not an issue at controversy here. Colorado cannot say the 14th amendment means a different thing in their state than it does elsewhere.

Actually, the first question that the Colorado Supreme Court ruled on was whether or not the Colorado Election Code granted Colorado state courts jurisdiction to assess the qualifications of presidential candidates. They held that it did. Conversely, the Michigan courts just held that Michigan law does not authorize election officials to keep candidates off the (primary) ballot on the basis of Constitutional disqualification. There is no inherent contradiction here as these are questions of state law.

Whether or not states can allow or not allow ineligible candidates is not up in the air, no, Colorado has a mechanism to remove ineligible candidates and Michigan does not. If the Supreme Court upheld Colorado's ruling, Trump would remain on the ballot in Michigan, because there's no reason a state can't allow an ineligible candidate on its ballot and nobody claimed they couldn't. But for Colorado's mechanism to kick in, the candidate has to actually be ineligible. That is a constitutional question that must have the same answer in each state. The Court cannot make a decision on whether or not the Colorado Supreme Court has authority to do this without deciding on the merits of the Insurrection Clause, which would be binding on all 50 states

But here’s the rub: Let’s say SCOTUS weighed in tomorrow and told us what Section 3 of the 14th Amendment means. They might give us a definition of what “insurrection” means and the necessary burden of proof and due process protections required in order for a candidate to be disqualified from office on that basis. They might uphold or overturn the Colorado decision based on whether or not they believe the necessary burden was met. The Court could still punt on the question of whether or not Trump is disqualified because the Supreme Court is not a trial court that makes factual determinations. We do not have a single body for making nationwide factual determinations on presidential candidate qualifications because we do not have a nationwide presidential election. We in fact have 51 separate elections to appoint presidential electors.

SCOTUS could rule that it’s ultimately a political question for Congress to decide whether or not to accept any electoral votes cast for Trump as valid. But that doesn’t preclude the Court from also holding that the States have the right to adjudicate such claims as state law allows to determine Trump’s ballot access in the first place.

This is not necessarily how I think the Court will decide the case. But it’s one of many rabbit holes the Court could go down.

[Donerail]

There’s a dozen different ways the Court could parse the question of how to enforce the insurrection clause of the 14th amendment. And we’re truly in untested waters, so any traditional doctrine or precedent that you might expect a particular justice to follow is pretty much out the window. But I think one thing that’s being overlooked in the shuffle here is that there’s a pretty strong textual argument that the clause doesn’t apply to the office of the President in the first place. So that’s your path of least resistance if the Court feels like nipping the whole thing in the bud.

I struggle to imagine the Court going down that route. It does offer a possible off-ramp, but would Roberts, for one, really want to resolve this based on a strained reading of the Constitution that concludes the President is an office-holder but not an "officer" and the fact that the President swears to "preserve" the Constitution rather than "support" it? It gets you out of the immediate controversy, but it's also a prime example of why people hate lawyers.

I agree that the “preserve” vs “support” argument is unpersuasive. But the bigger problem is that Section 3 specifically identifies electors for President and Vice President but omits the President and Vice President themselves, which requires us to read the presidency into “any office” in order to apply. It’s either a very odd or very intentional omission.

I don't think it's odd at all. If you want Section 3 to apply to electors, you have to specifically identify them because electors are not officers. Senators and Representatives are likewise not officers (the Constitution only refers to "members"), and so they must be listed separately. But Article II repeatedly refers to the President as holding an "Office," so there is no need to single out the Presidency. No one thinks, for example, that the Impeachment Clause's reference to "any Office of honor, Trust or Profit under the United States" intentionally excludes the Presidency.

[SteveRogers]

There’s a dozen different ways the Court could parse the question of how to enforce the insurrection clause of the 14th amendment. And we’re truly in untested waters, so any traditional doctrine or precedent that you might expect a particular justice to follow is pretty much out the window. But I think one thing that’s being overlooked in the shuffle here is that there’s a pretty strong textual argument that the clause doesn’t apply to the office of the President in the first place. So that’s your path of least resistance if the Court feels like nipping the whole thing in the bud.

I struggle to imagine the Court going down that route. It does offer a possible off-ramp, but would Roberts, for one, really want to resolve this based on a strained reading of the Constitution that concludes the President is an office-holder but not an "officer" and the fact that the President swears to "preserve" the Constitution rather than "support" it? It gets you out of the immediate controversy, but it's also a prime example of why people hate lawyers.

I agree that the “preserve” vs “support” argument is unpersuasive. But the bigger problem is that Section 3 specifically identifies electors for President and Vice President but omits the President and Vice President themselves, which requires us to read the presidency into “any office” in order to apply. It’s either a very odd or very intentional omission.

I don't think it's odd at all. If you want Section 3 to apply to electors, you have to specifically identify them because electors are not officers. Senators and Representatives are likewise not officers (the Constitution only refers to "members"), and so they must be listed separately. But Article II repeatedly refers to the President as holding an "Office," so there is no need to single out the Presidency. No one thinks, for example, that the Impeachment Clause's reference to "any Office of honor, Trust or Profit under the United States" intentionally excludes the Presidency.

I tend to agree with your reading, but I also think it would’ve been really, really helpful if the drafters of the 14th had specifically singled out the presidency. It’s not as though this debate was unforeseeable.

[politicallefty]

I don't think it's odd at all. If you want Section 3 to apply to electors, you have to specifically identify them because electors are not officers. Senators and Representatives are likewise not officers (the Constitution only refers to "members"), and so they must be listed separately. But Article II repeatedly refers to the President as holding an "Office," so there is no need to single out the Presidency. No one thinks, for example, that the Impeachment Clause's reference to "any Office of honor, Trust or Profit under the United States" intentionally excludes the Presidency.

I agree with you on this. Separating the Presidency from all other offices/officers makes no sense. There is no textual basis for such an idea apart from hyper-literalism, which should have no place in interpreting the Constitution. As you mentioned, Article II includes multiple references to the "Office" in which the President of the United States holds. I don't see how the "Office of President of the United States" is distinct from any other office or officer.

I do think it's interesting as to how Section 3 of the Fourteenth Amendment is constructed. Disqualification is established as a matter of fact. (It does not define insurrection or rebellion. On the other hand, the last part is the definition of treason, which must be determined in a court of law.) However, removal of disqualification is very clear (a 2/3 vote of both Houses of Congress).

[brucejoel99]

[David Hume]

If that happens, Republican voters would sue RNC for nominating unqualified presidential candidates and deprived votes the right to vote. The will prevail in SC, and force RNC to install DeSantis instead.

[NYDem]

If that happens, Republican voters would sue RNC for nominating unqualified presidential candidates and deprived votes the right to vote. The will prevail in SC, and force RNC to install DeSantis instead.

There’s not really any use in speculating. I’d put 100:1 odds on the Supreme Court ruling that Trump is disqualified. It’s not going to happen.