SCOTUS Watch

[LordMortis]

Senate Republican Leader Mitch McConnell (Ky.) warned Senate Democrats on Tuesday about issuing subpoenas to two prominent billionaires and a conservative activist because of their friendly ties to conservative members of the Supreme Court, calling such a move “totally inappropriate.”

After a long spaced out pause he dewlap waggled, "If anyone knows about totally inappropriate, it's me and Satan for whom I have a deal in place."

[Carpet_pissr]

McConnell is angry:

Senate Republican Leader Mitch McConnell (Ky.) warned Senate Democrats on Tuesday about issuing subpoenas to two prominent billionaires and a conservative activist because of their friendly ties to conservative members of the Supreme Court, calling such a move “totally inappropriate.”

McConnell essentially told Democratic colleagues to back off after Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) announced this week that his committee will subpoena two businessmen who extended personal hospitality to conservative Justices Clarence Thomas and Samuel Alito.

“What he’s targeting here is private citizens with no legislative purpose. I think it’s completely and totally inappropriate,” McConnell said at a press conference Tuesday.

Uh oh! Look who outed themselves as having been fed by the same hands feeding Thomas (at least)! Whoopsie daisy, there Sir Strokes-A-Lot! I bet a fully functioning Yertle would not have made such a foolish and obvious error. Just go away, already, you piece of traitorous trash.

[Zarathud]

There shouldn’t have been any doubt McConnell was deeply entrenched in the graft to get new justices appointed. He was the architect of the SCOTUS takeover and preserving corporate political contributions. If he’s this vocal, he’s really worried about the fallout.

[Pyperkub]

McConnell is angry:

Senate Republican Leader Mitch McConnell (Ky.) warned Senate Democrats on Tuesday about issuing subpoenas to two prominent billionaires and a conservative activist because of their friendly ties to conservative members of the Supreme Court, calling such a move “totally inappropriate.”

McConnell essentially told Democratic colleagues to back off after Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) announced this week that his committee will subpoena two businessmen who extended personal hospitality to conservative Justices Clarence Thomas and Samuel Alito.

“What he’s targeting here is private citizens with no legislative purpose. I think it’s completely and totally inappropriate,” McConnell said at a press conference Tuesday.

Uh oh! Look who outed themselves as having been fed by the same hands feeding Thomas (at least)! Whoopsie daisy, there Sir Strokes-A-Lot! I bet a fully functioning Yertle would not have made such a foolish and obvious error. Just go away, already, you piece of traitorous trash.

McConnell is also full of sh*t. there is absolutely a legislative purpose AND they refused to voluntarily testify. From the article:

Durbin said on the Senate floor Tuesday that the subpoenas are “the next step in the committee’s ongoing investigation of the ethics of the Supreme Court.”

“It only comes after Mr. Crow refused to comply with committee requests and Mr. Leo and Arkley stonewalled the committee,” he said.

Durbin told The Hill that he expects to have enough Democratic votes in committee to approve the subpoenas.

Durbin and Whitehouse defended the use of subpoenas to compel cooperation with their panel’s investigation into the Supreme Court’s ethics in a joint statement.

They argued that there aren’t any other steps for the committee to consider other than a “compulsory process” because of what they characterized as the outright defiance of legitimate oversight requests.

They noted the Judiciary Committee in July advanced the Supreme Court Ethics, Recusal and Transparency Act, a bill to require Supreme Court Justices to adopt a code of conduct.

[malchior]

This is what happens when privileged people get caught doing something they don't want to talk about.

[Alefroth]

https://www.washingtonpost.com/politics ... hics-code/

The Supreme Court on Monday issued an ethics code specific to the nine justices after reports of lavish and unreported travel and gifts for some of its members prompted intense public criticism and political pressure.

[malchior]

Oh course it came with a huge heaping of whining about how they are the victims.

A statement from the court said that while “for the most part” the guidelines are not new, they were necessary for the public.

The absence of an ethics code “has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” said the statement signed by Chief Justice John G. Roberts Jr. and his eight colleagues. “To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.”

Sure...it is *we* who don't understand.

The code does not provide a specific remedy for a complaint that a justice has violated the court’s standards.

Short of resigning there pretty much no penalty possible. I guess we could creative but this is a constitutional problem.

Frost and other ethics experts, however, were critical of the court for not acknowledging past transgressions and for the lack of any enforcement mechanism if a justice were shown to have violated one of the new rules.

The statement gives it away. They aren't going to change. They just want to give the appearance of doing something. They're tyrants and we just have to learn to like it. I mean come to understand that they are just beneficial overlords who sometimes get paired up with billionaires for free trips. But it's just because they are friends. These folks definitely would have been friends had they not been groomed and elevated to power. And it doesn't affect their judgement or the appearance that they are corrupt *at all*.

I'll say if they had just published a code and acknowledged the concerns of the public it would have gone a long way. This feels like yet another in a long line of "fuck you's" to the concerns of good governance.

[YellowKing]

Yeah it's beyond ridiculous. It's like explaining away the sexual harassment you committed at work by presenting the company's strict anti-harassment policies. Umm.....OK?

[malchior]

I'll say that Roberts has cemented his legacy. At every turn, he has enabled bad behavior and then acted aggrieved when called out on it. It's Trump-lite behavior.

[Carpet_pissr]

Roberts to public: you are wrong, we have ethics rules!
Public: which are?
Roberts: ummmm, (urgently whispers something to an intern)...THESE ones, right here, that were totally not just now made up when the unwashed public starting questioning our ethics. Now go back to watching your brain-rotting Netflix so we can run this bitch as we see fit without your meddling.

[Unagi]

Yeah it's beyond ridiculous. It's like explaining away the sexual harassment you committed at work by presenting the company's strict anti-harassment policies. Umm.....OK?

Very unfortunately it's not as ridiculous as that, but it should be.

They aren't even remotely strict policies in this case, it's just general 'guidelines' they have no obligation to follow or report on, so it's just empty.

So, it's more like my daughter scolding me for not checking all my mirrors before backing the car out of the driveway - and me rolling my eyes and telling her that I'll be sure to update my "driveway backing up guidelines".

[El Guapo]

I'll say that Roberts has cemented his legacy. At every turn, he has enabled bad behavior and then acted aggrieved when called out on it. It's Trump-lite behavior.

Roberts is one of the Republican elite who will go along with tearing down our institutions and norms as long as you give him a way to pretend that he's not doing that.

[Isgrimnur]

Supreme Court hears major case that could upend tax code and doom "wealth tax" proposals

The dispute before the justices, known as Moore v. United States, dates back to 2006. That year, Charles and Kathleen Moore made an investment to help start the India-based company, KisanKraft Machine Tools, which provides farmers in India with tools and equipment. The couple invested $40,000 in exchange for 13% of the company's shares.

KisanKraft's revenues have grown each year since it was founded, and the company has reinvested its earnings to expand the business instead of distributing dividends to shareholders.

The Moores did not receive any distributions, dividends or other payments from KisanKraft, according to filings with the Supreme Court. But in 2018, the couple learned they had to pay taxes on their share of KisanKraft's reinvested lifetime earnings under the "mandatory repatriation tax," which was enacted through the Tax Cuts and Jobs Act, signed into law by President Donald Trump the year before. The tax was projected to generate roughly $340 billion in revenue over 10 years.

The tax required U.S. taxpayers who owned at least 10% of a foreign company to pay a one-time tax on their proportionate share of the company's earnings. As a result of the new requirement, the Moores were assessed to have an additional $132,512 in taxable income and had to pay $14,729 more in taxes.

The couple paid the tax but filed a lawsuit against the government seeking a refund. They said the mandatory repatriation tax is a violation of the 16th Amendment because it taxes unrealized gains and not income.
...
While the case has attracted input from a slew of nonprofit organizations and states, it has also been ensnared in the ongoing scrutiny over the ethics practices at the Supreme Court after Justice Samuel Alito participated in interviews with David Rivkin, a lawyer who is representing the Moores, and James Taranto, an editor at the Wall Street Journal.

[geezer]

Supreme Court hears major case that could upend tax code and doom "wealth tax" proposals

The dispute before the justices, known as Moore v. United States, dates back to 2006. That year, Charles and Kathleen Moore made an investment to help start the India-based company, KisanKraft Machine Tools, which provides farmers in India with tools and equipment. The couple invested $40,000 in exchange for 13% of the company's shares.

KisanKraft's revenues have grown each year since it was founded, and the company has reinvested its earnings to expand the business instead of distributing dividends to shareholders.

The Moores did not receive any distributions, dividends or other payments from KisanKraft, according to filings with the Supreme Court. But in 2018, the couple learned they had to pay taxes on their share of KisanKraft's reinvested lifetime earnings under the "mandatory repatriation tax," which was enacted through the Tax Cuts and Jobs Act, signed into law by President Donald Trump the year before. The tax was projected to generate roughly $340 billion in revenue over 10 years.

The tax required U.S. taxpayers who owned at least 10% of a foreign company to pay a one-time tax on their proportionate share of the company's earnings. As a result of the new requirement, the Moores were assessed to have an additional $132,512 in taxable income and had to pay $14,729 more in taxes.

The couple paid the tax but filed a lawsuit against the government seeking a refund. They said the mandatory repatriation tax is a violation of the 16th Amendment because it taxes unrealized gains and not income.
...
While the case has attracted input from a slew of nonprofit organizations and states, it has also been ensnared in the ongoing scrutiny over the ethics practices at the Supreme Court after Justice Samuel Alito participated in interviews with David Rivkin, a lawyer who is representing the Moores, and James Taranto, an editor at the Wall Street Journal.

This actually does seem to be an unfair tax.

[Zarathud]

Moore should not be a difficult case. Its plaintiffs rest their suit upon a nebulous provision of the Constitution from an age when the United States enslaved people and engaged in judicial activism. And they rely on discredited Supreme Court opinions that have been repudiated by the Court itself — and by a whole damn constitutional amendment.

[El Guapo]

Moore should not be a difficult case. Its plaintiffs rest their suit upon a nebulous provision of the Constitution from an age when the United States enslaved people and engaged in judicial activism. And they rely on discredited Supreme Court opinions that have been repudiated by the Court itself — and by a whole damn constitutional amendment.

I take some comfort from Isgrimnur's article saying that it looked like SCOTUS was going to affirm the income tax provision, at least.

[Smoove_B]

I'm sure no one is surprised:

The Supreme Court said Wednesday it will take up a case that could limit the availability of the common abortion pill mifepristone, bringing the issue of abortion back to the court more than a year after the justices ended the constitutional right to one.

The court granted a request from the Justice Department and one from Danco, the manufacturer of Mifeprex, the branded version of mifepristone.

The brief orders consolidate the two cases and set them up to be heard this term, with a decision expected by the end of June.

...

Mifepristone is widely used across the U.S. to end a pregnancy in the first 10 weeks of gestation. It was first approved in 2000, and about half of all abortions nationwide are performed using mifepristone as the first of a two-pill regimen. It is also used to help manage miscarriages.

The lawsuit is not focused on abortion access, but rather the Food and Drug Administration’s (FDA) drug approval process. The decision could have major implications for the biopharma industry.

[Octavious]

It's a total free for all at this point. Awesome.

[Smoove_B]

It's kinda weird though as the case was prompted by the DOJ and the manufacturer. I think they're trying to short-circuit the case that's being heard in the 5th circuit in the same way that Jack Smith filed his case regarding Presidential Immunity. I guess they're trying to just cut to to the chase and have whatever is going to happen sooner. It's all a gamble but with the idea that you take the fight to the finishing point instead of letting it drag out until it finally gets there anyway?

[malchior]

Taking the offensive makes sense because otherwise the extremists in the lower courts will build a record in support of their aims. This is fairly grim stuff. The government and the regulated essentially taking the same side on a regulatory regime tells you what is at stake here.

[Smoove_B]

No one would believe this if it was in a movie:

The Supreme Court on Wednesday said it will hear an appeal that could upend hundreds of charges stemming from the Capitol riot, including against former President Donald Trump.

The justices will review an appellate ruling that revived a charge against three defendants accused of obstruction of an official proceeding. The charge refers to the disruption of Congress’ certification of Joe Biden’s 2020 presidential election victory over Trump.

...

The court’s decision to weigh in on the obstruction charge could threaten the start of Trump’s trial, currently scheduled for March 4. The justices separately are considering whether to rule quickly on Trump’s claim that he can’t be prosecuted for actions taken within his role as president. A federal judge already has rejected that argument.

...

The Supreme Court will hear arguments in March or April, with a decision expected by early summer.

The obstruction charge, which carries up to 20 years behind bars, has been brought against more than 300 defendants and is among the most widely used felony charges brought in the massive federal prosecution following the deadly insurrection on Jan. 6, 2021, when a mob of Trump supporters stormed the Capitol in a bid to keep Biden, a Democrat, from taking the White House.

At least 152 people have been convicted at trial or pleaded guilty to obstructing an official proceeding, and at least 108 of them have been sentenced, according to an Associated Press review of court records.

A lower court judge had dismissed the charge against Joseph Fischer, a former Pennsylvania police officer, and two other defendants, ruling it didn’t cover their conduct. The justices agreed to hear the appeal filed by lawyers for Fischer, who is facing a seven-count indictment for his actions on Jan. 6, including the obstruction charge.

[Octavious]

I mean so far has the SC given Trump any real wins directed at him? They seem more focused on making us into a right wing fantasy land where we all go and pray our sins away on Sunday. I do think there's like a 90 percent chance that he delays everything until the election. It's just so easy for him to buy time. And then it won't matter.

[malchior]

Re: the 1/6 appeal to the SC, I was reading that they only granted Cert to 1 out of the 3 appellants involved in the consolidated case. It seems like they might be narrowly focusing on issues relevant to that single person's case and it might not be broad/transformative.

[Smoove_B]

New this morning, more on Justice Thomas' finances:

In early January 2000, Supreme Court Justice Clarence Thomas was at a five-star beach resort in Sea Island, Georgia, hundreds of thousands of dollars in debt.

After almost a decade on the court, Thomas had grown frustrated with his financial situation, according to friends. He had recently started raising his young grandnephew, and Thomas’ wife was soliciting advice on how to handle the new expenses. The month before, the justice had borrowed $267,000 from a friend to buy a high-end RV.

...

The full details of Thomas’ finances over the years remain unclear. He made at least two big purchases around the early ’90s: a Corvette and a house in the Virginia suburbs on 5 acres of land. When Thomas and his wife, Ginni, bought the home for $522,000 a year after he joined the court, they borrowed all but $8,000, less than 2% of the purchase price, property records show.

...

During his second decade on the court, Thomas’ financial situation appears to have markedly improved. In 2003, he received the first payments of a $1.5 million advance for his memoir, a record-breaking sum for justices at the time. Ginni Thomas, who had been a congressional staffer, was by then working at the Heritage Foundation and was paid a salary in the low six figures.

Really (I think) the article is about this:

Thomas’ efforts were described in records from the time obtained by ProPublica, including a confidential memo to Chief Justice William Rehnquist from a top judiciary official seeking guidance on what he termed a “delicate matter.”

The documents, as well as interviews, offer insight into how Thomas was talking about his finances in a crucial period in his tenure, just as he was developing his relationships with a set of wealthy benefactors.

Suggesting this was a known issue for 2+ decades, without any type of formal investigation, sanctions or consequences.

[Pyperkub]

Just before Bush v. Gore...

[Victoria Raverna]

Is she seriously stupid to say this out loud or the situation of supreme court is that bad?

https://www.newsweek.com/donald-trump-c ... gh-1858014

Donald Trump's lawyer Alina Habba has said that Supreme Court Justice Brett Kavanaugh would be among the judges to throw out the decision disqualifying the former president from the ballot in Colorado as Trump "went through hell" to get him to the bench.

Speaking to Fox News' Sean Hannity, Habba singled out Kavanaugh as one of those on the SCOTUS bench who will "step up" for Trump after the Colorado Supreme Court made a historic ruling in December to ban Trump from running for president in the state over violating the Constitution's insurrection clause around the January 6 attack.

Trump has appealed the decision to the Supreme Court and has denied that his actions related to the Capitol riots violated Section 3 of the 14th Amendment. The section, brought in after the Civil War, states that a person who "engaged in insurrection or rebellion" after taking an oath of office to support the Constitution cannot run for office again.

The conservative majority Supreme Court bench, which includes three justices nominated to the bench by Trump—Kavanaugh, Amy Coney Barrett, and Neil Gorsuch—is expected to take on the case, and rule on whether to allow or throw out the Colorado decision.

Habba predicted that the Supreme Court would make a "slam dunk" ruling in Trump's favor while suggesting Kavanaugh is one of the nine justices who will want to overturn the decision to ban Trump from running for office in Colorado.

"People like Kavanaugh, who the president fought for, who the president went through hell to get into place, he'll step up," Habba said.

"Those people will step up, not because they're pro-Trump, but because they're pro-law, because they're pro-fairness and the law on this is very clear."

Kavanaugh was confirmed to the Supreme Court bench in October 2018 after being nominated by then-president Trump. Kavanaugh's confirmation proceeding was dogged by multiple accusations of sexual misconduct against him, including allegations from Christine Blasey Ford, a psychology professor, that he sexually assaulted her at a house party in 1982. Kavanaugh denied the allegations.

Habba's comments were condemned as an apparent attempt to influence how Kavanaugh will rule on the Colorado decision, or suggesting that his vote will be based on his allegiance to Trump rather than the rule of law after a clip of the interview was posted on social media.

"If Alina Habba is right and Justice Kavanaugh feels in any way that he owes Trump and will 'step up,' then she should be sanctioned by the bar for saying this on TV, & thus trying to prejudice a proceeding," Michael Kagan, a law professor at the University of Nevada, Las Vegas, posted on X, formerly Twitter.

Olivia Troye, who served as a homeland security and counter-terrorism advisor to former vice president Mike Pence, whose relationship with Trump fell apart in the wake of the January 6 attack, added: "Don't ever forget that the wannabe mob boss will always cash in on his favors...Habba saying it loud & clear for Justice Kavanaugh."

Mark S. Zaid, a Washington D.C.-based lawyer, said the remarks were "yet another example of Habba demonstrating how unprofessional she is as an attorney."

Reacting to the criticism, Habba told Newsweek: "As I have stated multiple times, the Constitution and law speak for itself and I believe every Justice will decide on this clear-cut issue fairly.

"Left-wing media's attempt to intimidate judges who have been put through rigorous vetting due to who they were appointed by is ridiculous and that is exactly why I addressed it. This is about the Constitution and due process, nothing else."

Trump frequently defended Kavanaugh while he faced the sexual assault allegations, later apologizing to the judge "for the terrible pain and suffering" he endured while dealing with the claims. Trump was accused of dismissing the credibility of the women who came forward with the allegations, including mocking Ford's versions of events.

Elsewhere in her interview with Hannity, Habba lashed out at the states of Colorado and Maine for banning Trump from running for office while citing the insurrection clause when the former president has not been charged or prosecuted with such an act.

"Insurrection under the 14th Amendment was to prevent people from a war, who were pro-slavery, who were anti-American, from taking office," Habba said. "That is not this. He has never been charged for it—due process, I would like to think, still exists in this country."

Trump has pleaded not guilty to four federal charges of conspiring to defraud the United States, conspiring to obstruct an official proceeding, obstructing a congressional proceeding, and conspiracy against rights under Special Counsel Jack Smith's investigation into an alleged criminal attempt to overturn the 2020 election results and the events which led up to the January 6 attack.

[Smoove_B]

Here it is:

The Supreme Court said Friday it will decide whether former President Donald Trump can be kept off the ballot because of his efforts to overturn his 2020 election loss, inserting the court squarely in the 2024 presidential campaign.

The justices acknowledged the need to reach a decision quickly, as voters will soon begin casting presidential primary ballots across the country. The court agreed to take up a case from Colorado stemming from Trump’s role in the events that culminated in the Jan. 6, 2021, attack on the U.S. Capitol.

Arguments will be held in early February.

The court will be considering for the first time the meaning and reach of a provision of the 14th Amendment barring some people who “engaged in insurrection” from holding public office. The amendment was adopted in 1868, following the Civil War. It has been so rarely used that the nation’s highest court had no previous occasion to interpret it.

One can only imagine how this will go - especially since they get to set legal precedent instead of following it for once.

(pauses for laughter)

[malchior]

The Colorado case adopted an originalist interpretation probably knowing this was coming. I look forward to the usual people trying to excuse whatever nonsense escape hatch they grant Trump on this that somehow sidesteps that analysis.

[El Guapo]

I suspect that they'll find some neutral-sounding way to keep Trump on the ballot without making a conclusion one way or the other whether Trump "engaged in insurrection." Not sure what the easiest option for them is - possibly just going with the district court's conclusion that the President is not an "officer" under the 14th Amendment.

[Smoove_B]

Not sure what the easiest option for them is - possibly just going with the district court's conclusion that the President is not an "officer" under the 14th Amendment.

Opinions vary.

Our conclusion is simple: the President was an officer of the United States as originally understood both at the Founding and the ratification of the Fourteenth Amendment. Numerous sources confirm that “officer of the United States: was not a term of art, which by itself settles the matter. Regardless, founding-era sources also refer to the President as an officer of the United States. This includes the Postal Act of 1792, which lists the President with officers of the United States. Additionally, there is strong probative evidence that, in 1868, President was considered an officer of the United States.

The Postal Act of 1792 that birthed the U.S. Postal Service, signed into law by none other than the first president of the United States, George Washington, stood out to the authors as “founding-era” proof that the president was understood to be an “officer of the United States” and that Trump was “wrong” to argue in a Colorado Supreme Court brief that “not one authority holds that the President is an ‘officer of the United States’ — no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion.”

[YellowKing]

It seems to me the easiest solution would be to find that since Trump has not (yet) been convicted of engaging in insurrection, he cannot be kept off the ballot. Or am I missing something? Does a judge just saying he engaged in insurrection make it so?

[Smoove_B]

There's nothing in the Constitution that says a person has to be found guilty in a court of law of insurrection - only that they "engaged" in it.

[Alefroth]

It seems to me the easiest solution would be to find that since Trump has not (yet) been convicted of engaging in insurrection, he cannot be kept off the ballot. Or am I missing something? Does a judge just saying he engaged in insurrection make it so?

I would guess as much as judges saying anything makes it so.

[malchior]

I suspect that they'll find some neutral-sounding way to keep Trump on the ballot without making a conclusion one way or the other whether Trump "engaged in insurrection." Not sure what the easiest option for them is - possibly just going with the district court's conclusion that the President is not an "officer" under the 14th Amendment.

I've heard enough people argue that way but they are pretty silly to me. And just functionally it makes little sense. The only person in the government who takes an oath to support the Constitution that isn't covered by the 14th is the office with the most power?

Earlier today I listened to the Opening Arguments podcast, They unpacked this and read through the Amicus brief in the Trump appeal to SCOTUS and they found one new argument that is...creative (but stupid). I don't know if I could see them using it but I'll lay it out below in a second. It'd however be convoluted enough to maybe amount as less of a 'fuck you' to the American people and the Constitution than ruling him not an officer.

However, just to be clear I think it'll still be a 'fuck you' but at a lower level. Mostly because there is little to no chance they'll address the factual parts of the ruling that determined he engaged in insurrection. They'll just dance by that unfortunate reality. Though there is a chance one or a few of the more hacky, mendacious evil creatures on the court will file a concurrence that challenges the facts there. Because why not.

Anyway onto the "creative argument". The argument goes something like this, Section 3 has a provision for Congress to override any disability to the office of Presidency with a 2/3 vote. One thing they note is that there is no time limit established for the 'un'-disqualification vote provided in the 14th amendment. Ostensibly, Trump could get 're-qualified' for election in Colorado at any moment. That is in tension with him being on the ballot.

They then mix in the a little 20th Amendment analysis which includes contemplation that a President might be disqualified on inauguration day but may be qualified later and a stand-in can occupy the office in his place until they are qualified. I'll quote what I believe is the relevant text here:

If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

So the argument is we can elect someone who is not qualified to be President. The podcast lays out a theoretical to illustrate this in a more reasonable manner than a guy who attempted an autocoup. Let's say we elect as President someone who is 34 on inauguration day. We can swear in the elected VP and they can hold the office for the year until the President becomes 'qualified' for office. Mmmkay?

Anyway, the bottom line is that the brief lays out an argument that he can still run and it'd be up to Congress to fix his dis-qualification via a 2/3 vote. Or not because perhaps it isn't some self-executing thing. Who knows! It's a mystery. To boil down the argument more, they argue nothing in 14th or any other text prevents someone from 'trying to get elect' to the office of the Presidency even if they are disqualified especially since that disqualification can be fixed at any time.

I rate this low on the list of possibilities. Mostly because it's so ham-fisted and contrary to common sense but who knows anymore.

One last thing. The one thing that really disturbs me about reading though all this *bullshit* is that almost all analysis assumes they're going to kick this on essentially partisan grounds. I agree they'll try to sell it as 'neutral' and maybe even convince the liberals to go along due to how important it is but I think there is a chance this will be seen as something that is especially cynical.

I mean it really feels like the majority of the "elite" legal chorus thinks the Colorado Supreme court got it right yet the chorus also believes SCOTUS will ignore that in favor of partisanship. That's ugly stuff. I don't know how we deal with everyone starting to treat the law as a punching bag and also a partisan joke. Anyway I think we're going to have another data point reinforcing the reality that law in the United States is meaningless except as framed in the crude application of partisan power. It isn't going to end well.

[malchior]

It seems to me the easiest solution would be to find that since Trump has not (yet) been convicted of engaging in insurrection, he cannot be kept off the ballot. Or am I missing something? Does a judge just saying he engaged in insurrection make it so?

The Colorado case had a factual finding that he engaged in insurrection. And Trump had representation at both the district and appeals court levels so there was substantive due process.

[milo]

Moreover, historically after the Civil War, none of the people who were then barred from office were ever found guilty of a "crime" of insurrection or giving aid and comfort to the enemy. It was simply a fact that they had participated in the war as part of the Confederacy and that was that. Interestingly, very few Confederates were explicitly disqualified (probably about five or ten). Many more petitioned Congress for amnesty and were denied. Having been rejected, they did not still try to seek office as it was obvious to everyone that they were ineligible under the 14th Amendment.

[Blackhawk]

This one has thrown me a bit. Confirming he 'engaged' in insurrection is a tricky thing that seems to come down to semantics. (I believe) he did engage in insurrection... by proxy. Is "Accessory to Insurrection" a thing? Or is that enough? I honestly wish that this had waited until after the trial. Nothing short of a stroke is likely to keep him from being the candidate, and now we're in a position where we have to trust the current court's judgement again for zero actual gains.

I really wish that Democrats would stop pushing issues that are guaranteed to end up in front of the Supreme Court until ( ) something is done to address the issues with it. Gun control, abortion, election proceedings, civil rights, immigration - keep that stuff as far away from the SC as humanly possible for now. A few bad laws for a few years are much easier to overcome later than a bad Supreme Court ruling.

[Alefroth]

A few years is an unrealistically optimistic notion of when the SC issue will be resolved. It'll probably be at least a decade.

[Zaxxon]

A few years is an unrealistically optimistic notion of when the SC issue will be resolved. It'll probably be at least a decade.

I’d put the over/under at 2.5 decades.

[malchior]

I really wish that Democrats would stop pushing issues that are guaranteed to end up in front of the Supreme Court until ( ) something is done to address the issues with it. Gun control, abortion, election proceedings, civil rights, immigration - keep that stuff as far away from the SC as humanly possible for now. A few bad laws for a few years are much easier to overcome later than a bad Supreme Court ruling.

There is another path. Barring real reform or the increasingly inevitable devolution to violence the reality is this would mean avoiding legal fights for decades. The most logical way forward without waiting/causing their deaths is to expand the court or reform the court's powers which belongs to Congress. To do so would require convincing the public that the court is broken. Any concerted effort may also encourage them to moderate their radicalism/tyranny as a side effect.