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this post was submitted on 08 Feb 2024
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Politics
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This one was always going to be a long shot. The real story here (or one real story, I guess) is why nobody had the guts to ask Thomas to recuse himself.
I don’t know what procedure is in place to do that, but I’m guessing they didn’t do it before the hearing and it is against decorum to do during the hearing
A long shot in what way? That you think they'll find in favor of trump?
Yes, judging by the tenor or the questions it probably won’t even be close. They may end up ruling that Section 5 requires enabling legislatIon to be passed before state enforcement of Section 3 can proceed, but who knows. I think the fix is in on this one, regardless of the actual merits of the legal theories.
I’ll also go out on a limb and say that even though I am viscerally with Colorado here, a victory could easily turn into chaos once GOP-controlled courts in battleground states start engaging in a tit-for-tat. I can already hear the MTG-caliber arguments about humane border policy equating to insurrection.
The upcoming immunity case is going to be way more problematic for Trump, I think.
I thought this article from Vox did a good job laying out how it could fall in Trump's favor.
Taking Trump out of the equation for a moment, I do find resonance with the argument that a state shouldn't be able to disqualify someone from a national election and that a decision like that should sit at the federal level. I'll also echo circularfish in that I don't trust Republican states to fairly apply this standard. It seems like something Democrat-controlled states might do because they believe in rules/institutions so they'll only do it when pressured, if even then. Republican-controlled states will do to score points on Fox/OAN against anyone from Joe Manchin and leftwards on the political spectrum.
On the states issue, while I understand the argument and it was the only thing that made me reconsider my position, that seems to me more in the arena of how they would like it to be rather than how it is. States have the right to run their elections. The consequences of that might be problematic or inconvenient but that is how our system is designed. I mean I am no constitutional scholar, but I have been reading and listening on this and that's how I see it. As far as it being abused, every state will have some kind of due process to evaluate how legitimate the claim is and ultimately it can be brought to the SC.
Killing Roe and turning abortion into states rights certainly was a level of chaos the court was a-ok with. So they are fine with chaos. As far as it not being a federal issue, I guess, but not everyone has the resources to up and go to another state to get medical care.
This.
I don't see how they can cry, "States' Rights!" all this time and now try to say states DON'T have the right to set their ballots. They do. They keep various 3rd party candidates off ballots all the time for stuff like not having enough signatures to get them ON the ballot.
I heard Trump's lawyer argue that requiring candidates not-be-insurrectionists was adding a requirement not in the Constitution -- except it IS in the Constitution and even though 2/3 of Congress could give a pardon/waiver on that, the fact that they MIGHT do so in the future does not disqualify Trump in the now, which the Colorado lawyer brought up. Later, TV commentators brought up that after the Civil War, a bunch of guys DID preemptively ask Congress for waivers. If Trump got that through now, it sounds like Colorado would have to put him on the ballot.
The Supreme Court decided Bush V. Gore on just the state of Florida. It sounds like they are now deciding Trump V. [Constitution] and trying to blame it on Colorado. Sadly, they seem to want the Constitution to lose. My last hope is that they don't make this about letting 'one state decide the president' because that already happens just based on who each state allows to vote. I'm hoping their decision stems from something actually in the Constitution.
Honestly, yes. I feel like the attorney arguing for Colorado voters fell flat in his arguments. I don’t necessarily find Trump’s attorney convincing, but he did a better job. Also this is my first time listening to SCOTUS and I’m surprised how many tangents they seem to take
That is super common in supreme court cases. They really like to explore the legality of each potential argument in a lot of depth.
Well, I guess I’m surprised because Judge Cannon was criticized for trying to find arguments for Trump and it feels like SCOTUS was doing the same thing. I suppose one federal court judge doesn’t have the impact SCOTUS does so they may need to consider more than what is presented
So I'm not familiar with why that particular judge was criticized, but you'll note that the entirety of arguments and discussion surround the brief and response letters which were submitted to the supreme court. It's possible that Cannon was stepping outside what was presented, which would warrant criticism. The supreme court never steps outside what is presented, except when it's necessary to understand what is being presented - for example they may call upon other legal text or rulings in order to fully frame what is and is not in scope with regards to the presented case or to understand precisely what a particular lawyer is arguing for or against.
But I also think that the fact that the supreme court is the final court which gets to have say on a matter lends them to pontificate in depth about some issues that other courts may not be given latitude to do the same because it may address issues which are currently working their way through the court system or may be called upon as a matter of jurisprudence in the future. The entire text of every decision they make can have consequences on lower courts and understanding the limits and the spirit of law they weigh in on and as of such it's important to fully understand the exact claims being made and appropriately scope where the response lies and whether certain issues could or should be weighed in upon during that case.
After O'Connor died, there was a discussion on The Political Junkie podcast where they were talking about her autobiography and in particular, about Bush vs Gore and what they were actually thinking about that case. And it had more to do with the whole maze of where things go depending on which contingencies (i.e. what cases happen next between Bush and Gore).
So according to her it was more about the structure of the laws and government than the decision itself. Which I don't think is something that Cannon is dealing with. Cannons is a trial court judge. The questions at the Supreme Court are more about structure and function of the government.