There are cases where the Supreme Court needs to rule unanimously for the interest of the judiciary's role in America to override any individual qualms about a particular case. For a generation, the Court unanimously upheld every desegregation case because it was important for the nation. If any of the three liberal jurists decide that this is the case they want to show off to their fans (hint, it certainly won't be Kagan), the cost will be immeasurable. A dissent from Jackson and/or Sotomayor on the question of judges deciding who can or can't be put on the ballot will poison future Supreme Court nominations far more than abortion ever did.
On a site like this, it should be pointed out that the split in the vote (all are Democrats) was the four in the majority are all T14 grads, while the three in the minority went to the University of Denver.
Interesting observation—I didn't notice that. I suppose a defender of the dissenters could argue that they are practical, real-world jurists, and the members of the majority are a bunch of pointy-headed, ivory-tower types.
Dec 20, 2023·edited Dec 20, 2023Liked by David Lat
I agree that a unanimous decision would be nice, to avoid any question of whether the decision was political. However, I doubt a nonunanimous decision (assuming the majority voted to keep Trump on the ballot) would poison future nominations more than the abortion issue did. Most voters will only care about the bottom-line result, not dissenting opinions, and I doubt that Senators would be very focused on this issue after 2024 (assuming the majority ruling is for Trump) because it wouldn't have much ongoing significance after the election is resolved.
I also wonder if dissenting opinions would only come from a liberal. The underlying academic work that started these cases was done by conservative law professors. Justices Gorsuch and Thomas can be wildcards and it's not impossible that they are persuaded to adopt an originalist reading that's bad for Trump (especially if it's clear Trump will win the case easily without their vote, so they're not under much pressure to do the pragmatic thing). I agree with Lat that you'll *probably* get at least one liberal and all the conservatives voting to keep Trump on the ballot. But there's at least some chance one of the conservatives dissents and 1-2 of the liberals do as well.
Sorry to say but you sound male if you're saying this could get worse than the abortion decisions. The Roe overturning was unconstitutional and Roe was bad law but not having it is worse. There needs to be a SCOTUS decision that the right to terminate an unwanted or unsafe or unhealhy pregnancy is a Constitutional right - otherwise we have as we're seeing, "forced labor" and lack of rights over one's own life and death and health. Women forced to be incubators is denial of a fundamental basic protection. And, Trump being forced onto a ballot in Colorado seems like it would violate state law and he did try to overthrow the government. He's disqualified himself from office, even if only Colorado has the guts to make the right call. Who cares about a unified SCOTUS when it comes to that. I'll take an honest SCOTUS even if it's a dissent. This court including Thomas is so illegitimate and discredited by now. A justice who dissents over bad law should be able to - dissent.
This us the same court that views free exercise of religion as a meaningless clause when LGBT rights are in conflict - I think that SCOTUS will grant cert and reverse
I can't imagine SCOTUS kicking Trump off the ballot. Just imagine the public outrage.
I get the Colorado Supreme Court's point about not "being swayed by public reaction"—but they kinda had a free pass there because they knew they wouldn't have the final word. No way the nine justices of SCOTUS do something this undemocratic.
I'm not so sure. Isn't the argument for disqualification supported by lots of conservatives, including two prominent law professors and former judge Michael Luttig?
how could Kagan Brown Jackson or even Roberts NOT vote to confirm the lower court's disqualification of Trump from the ballot? Other than the SCOTUS crazy right wing extremists (aka a majority on the court), a reasonable judge would confirm a legit disqualification from a lower court. This country has gone off the rails, to normalize Trump's behavior so widely. It's completely disqualifying.
The test for SCOTUS cannot be whether Colorado's decision was "undemocratic." The test must be whether the decision was unconstitutional. That said, you have a point. The Nine at times do merely vote (as if they were a controlling mini-democracy (mini-mob)) rather than doing as each vowed (acting with discipline to "faithfully" (always) "support and defend the Constitution of the United States against all enemies, foreign and domestic" 5 U.S.C. 3331). So maybe you're right. Maybe "undemocratic" will be dispositive.
SCOTUS wouldn't be kicking trump off the ballot, they would just be allowing a state to make a legit determination that he's not qualified - as he is most definitely not. If they overturn CO's decision, they are overreaching. and - what's the public good from forcing CO to put Trump on the ballot? it's by definition a public good to keep him off the ballot. he's a dangerous unhinged candidate who has already tried for an insurrection - he's by definition unfit and disqualified. Colorado did the right thing. And if Biden had done what Trump did I'd be saying that about Biden, this isn't a red/blue thing but a "you can't do that and be eligible to run again" thing.
Another fun thing to look for--deference to the trial court's findings of facts. Normally, an appellate court, including the justices of the Supreme Court, must give great deference to a trial court's findings of fact. The Colorado Supreme Court certainly did so when reviewing the evidence showing Trump violated section 3 of the 14th Amendment. I wonder if the US Supreme Court will do the same, assuming they get to the merits? Probably not, but another reason for the Court to avoid the merits. And, in any case, Justice Gorsuch showed us in the recent Kennedy v. School District case that the Court is willing to rewrite the facts if the facts are somehow...inconvenient.
To paraphrase the Queen of Hearts, verdict first, evidence later.
1. If I were Trump's lawyer, why wouldn't I say, "Donald, you will get the GOP nomination without Colorado's delegates, and you can win the presidency without Colorado's electoral votes -- you weren't going to get them anyway. Going to the Supreme Court risks a ruling that will keep you off the ballot everywhere. Much too big a risk. Your next tweet should be, "Who needs Colorado?"
2. For the Supreme Court to let Trump stay on the Colorado ballot, all it has to do is ... nothing.
If Trump files a cert petition by Jan 4, the Colorado court's judgment will remain stayed indefinitely. "[T]he stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court." So the Supreme Court can just keep relisting the petition until it becomes moot, and Trump stays on the ballot.
Your first point is an interesting one. But my guess is that Trump is fairly confident that he'll win before SCOTUS, so he's willing to roll the dice in the hope of getting a ruling that keeps him ON the ballot across the country. Otherwise he might have to deal with other rulings like this one, but maybe in purple states that he might actually carry.
If you believe the recent NY Times article, the Court is perfectly willing to defer ruling when it sees an advantage. The grant of cert in Dobbs was delayed for many months because the Court did not want to seem "political." Now that is funny.
To point 1, so long as the Colorado decision is out there, Trump gets to wave the bloody flag and call even more attention to himself. If the Supremes shoot it down, he loses much of the impact. Plus as things stand, the Republicans are going to end around by abandoning the primary & going to caucus. Meaning that when Colorado doesn’t put his electors on the ballot for real a lot more hell will break loose which will probably motivate his base even more & might increase general Republican turnout in other states. And of course Trump will revel in the situation.
Meanwhile, I wonder what happens when Colorado refuses to put the actual Electors on the ballot. Do they have an independent cause of action in federal court? Might be best to wait till then...
To point 2, I can see the Supremes delaying a bit to see what happens in other states, assuming an appeal.
I am very sensitive to disenfranchisement, as a registered Republican in deep-blue California. We do vote on separate primary ballots for president, and my vote for one of the R candidates will register. But for down-ballot positions, such as US senator, the top-two coming out of the primary go on to the general election. This year, with 3 high-profile Democrats running in the senate primary, the top two will be my choices on the general ballot. This means that I won't bother to vote that ballot line at all because none of those likely candidates will appeal to me. This is a prime example of one type of disenfranchisement, the result of a Democrat super-majority in the state Legislature that put this election law in place. Everything you hear about the disfunctionality of Calif is true !
Theoretically you're right, of course But in this state Republicans are generally so demoralized that few good people even express the desire to run in the primary. So there is a self-selection process at work after years of this top-two system having been in place. There was a good R candidate a few years ago, a former well-liked mayor of San Diego, who actually received enough primary votes to advance to the general election (where he lost to whoever the D governor was at that time--Brown or Newsom)--but this was a rare exception to the usual outcome that I described earlier. It's a discouraging situation for anyone who would like to think their vote will "count".
There have only been 2 California statewide elections that have gone D vs D. The 2016 election when Kamala Harris won the general and the 2018 election when DIanne Feinstein won. All of the gubernatorial elections and the other Senate elections have been D vs R. I think having Schiff, Lee, AND Porter in the race - all good high profile Democratic candidates battling for 60% of the vote, NONE of whom are likely to have any appeal at all for R voters - means any decent R should be able to walk into second place.
Perhaps, if everything could perfectly fall into place and the stars align.....if there is a "decent" R candidate, if all Rs in the state could line up in support of that decent R candidate, if one of the three D's vote count is significantly greater than the counts for the other two Ds. Etc. Anything is theoretically possible, but in the real world......get prepared to begin saying senator Schiff or Lee or Porter. Someday these outcomes may become history, but I doubt that will happen during my remaining years being vertical on the planet.
First, Republicans in California are not disenfranchised. They can vote like everyone else. No law passed by the Legislature bars them from voting, unlike laws passed in several states in the South--Georgia, Texas, Florida, etc. When the majority of voters goes against you, that is called losing, not disenfranchisement. That is democracy.
Second, the top-two law the writer describes was passed by the voters, not the Legislature.
I believe you are right that the law was passed by voters, but I wasn't living here at that time, so my misstatement. I do not agree that I'm not disenfranchised, however. I've voted in a number of other states in the union, and always felt that my vote "counted". While my version of disenfranchisement may not be legally correct by your definition, it's as though I am refused a ballot when I show up to vote, which is your technical definition of disenfranchisement. Call it a de facto form of being disenfranchised.
If Trump were indeed absent from the CO ballot, would that be a case of disenfranchisement or merely election interference?
How does the MAGA Trump supporter feel if he doesn't see Trump's name on the ballot? Is it any different from not being given a ballot in the first place?
In fact, however, as someone pointed out in a posting or two earlier, Trump wouldn't normally win CO anyway because it's turned quite blue in recent years. So rather than expending the time and energy on a write-in campaign, they are better off just to dismiss CO entirely as they do the entire left coast (WA-OR-CA).
Of the three dissents, two appear to relate to interpretations of Colorado law, while the third relates to the Constitutional question. When a state case is appealed to SCOTUS, are the determinations below about the meaning of state law something that SCOTUS can overrule? Or is the SCOTUS review limited to constitutional questions, since they are not experts on state law?
I'm inclined to agree with you (and Alexis D. above) that SCOTUS won't decide the case based on the Colorado state-law issues. There are so many other off-ramps here.
The highest court of a state should have the final say on what state law means and the US Supreme Court has said multiple times that it must respect that interpretation. But nothing is certain with this Court. They can reinvent law to get to the result they want.
In fact, however, as someone pointed out in a posting or two earlier, Trump wouldn't normally win CO anyway because it's turned quite blue in recent years. So rather than expending the time and energy on a write-in campaign, they are better off just to dismiss CO entirely as they do the entire left coast (WA-OR-CA).
The opinion is **grossly** underreasoned with respect to key issue: did Trump's conduct count as engaging in insurrection.
They basically adopt, with minimal analysis, the standard that "an insurrection as used in Section Three is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States”
But that's a pretty absurd rule. On its face (including the restatement where they say it's enough that it be intented to block the peaceful transfer of power) that includes Trump asking the police or secret service to **legally** use force to protect him from protestors blocking his path to the capital where he intends to ask Pence to refuse to count the votes.
More broadly, nothing in their standard requires any nexus between the force and unconstitutional action. If you believe (as many scholars do) that the war powers act is unconstitutional (and thus ordering us troops into battle is illegal) then does trying to increase your popularity by engaging in military activity like many past presidents count as an insurection if it's part of a scheme to avoid a peaceful transfer of power?
Even if we insist that this needs to be the motive of those engaging in the violence it's still not reasonable. Suppose Trump asked his mob to mug people and give him the money so he could bribe Pence. That's an insurrection??
The authors of the 14th amendment could have written it to disqualify anyone who attempts to subvert the us constitution via violence. They didn't. Insurrection implies something about the connection between the violence and the means of subverting the constitution that goes beyond merely being an element of a conspiracy and I'm deeply disappointed the court didn't give a more convincing analysis.
I agree that the US Supreme Court will reverse. I expect it to seek some reason other than a ruling on the merits-i.e., no discussion of whether Trump's candidacy violates section 3 of the Fourteenth Amendment. Standing is a possibility, but what kind of standing? Standing under Colorado law, since this case is brought in a Colorado court? Standing under federal law? That might prevent the Supreme Court from hearing the case, since it is bound by Article III constraints, but not a Colorado state court, which may have its own standing rules. Political question? That doctrine may apply to the Supreme Court's review of the case, but not to a Colorado state court. The US Supreme Court cannot impose its own views of "political questions" on a state court acting under state law. (But with this Court, who knows?)
I find the criticism of the Colorado Supreme Court as being "undemocratic" as both amusing and hypocritical. When the US Supreme Court decided Dobbs, it cared less about the views of voters. It cared even less when it decided Bruen, the gun rights case. As the recent New York Times article reveals, democracy only matters when counting to five votes at One First Street.
As usual I start with the dissents (being naturally disagreeable). They raise whether the state statute applies, whether the state statute was complied with in the trial, and whether due process was followed, interestingly 3 issues the Supreme Court could grab on to decide the case without addressing whether Trump engaged in an insurrection. The other weak point is causation. Trump's words are not connected to the riot - yes he said bad/stupid/offensive things, and should not be reelected President - but he didn't tell the crowd to invade the Capitol. He certainly did everything up to telling them that, and created an atmosphere for someone to act, but he didn't yell fire in the theater. I agree the Supreme Court is likely to take it up, will set for March and decide by May.
I agree that the Supreme Court usually does not try to interpret state laws when the state supreme court has already interpreted them, but this is not an ordinary case and one that impacts a federal election, unlike a state contract or tort law where there is no federal interest. Which is where Due Process might kick in, as it appears there was limitations on discovery, expert testimony, presentation of evidence, etc. The Supremes might also toss the trial if the evidence was improperly admitted, namely the Congressional report which was not a standard fact finding report. Lots to unpack, and will need to read more closely tonight.
I've added it as an update to the post, but I figured I might as well note it in the comments too. If you’re looking for a helpful guide to the different issues and how they were addressed by the majority and dissenting opinions, check out this great breakdown by BriefCatch:
There are cases where the Supreme Court needs to rule unanimously for the interest of the judiciary's role in America to override any individual qualms about a particular case. For a generation, the Court unanimously upheld every desegregation case because it was important for the nation. If any of the three liberal jurists decide that this is the case they want to show off to their fans (hint, it certainly won't be Kagan), the cost will be immeasurable. A dissent from Jackson and/or Sotomayor on the question of judges deciding who can or can't be put on the ballot will poison future Supreme Court nominations far more than abortion ever did.
On a site like this, it should be pointed out that the split in the vote (all are Democrats) was the four in the majority are all T14 grads, while the three in the minority went to the University of Denver.
Why isn't Boulder pulling its weight?
Interesting observation—I didn't notice that. I suppose a defender of the dissenters could argue that they are practical, real-world jurists, and the members of the majority are a bunch of pointy-headed, ivory-tower types.
I agree that a unanimous decision would be nice, to avoid any question of whether the decision was political. However, I doubt a nonunanimous decision (assuming the majority voted to keep Trump on the ballot) would poison future nominations more than the abortion issue did. Most voters will only care about the bottom-line result, not dissenting opinions, and I doubt that Senators would be very focused on this issue after 2024 (assuming the majority ruling is for Trump) because it wouldn't have much ongoing significance after the election is resolved.
I also wonder if dissenting opinions would only come from a liberal. The underlying academic work that started these cases was done by conservative law professors. Justices Gorsuch and Thomas can be wildcards and it's not impossible that they are persuaded to adopt an originalist reading that's bad for Trump (especially if it's clear Trump will win the case easily without their vote, so they're not under much pressure to do the pragmatic thing). I agree with Lat that you'll *probably* get at least one liberal and all the conservatives voting to keep Trump on the ballot. But there's at least some chance one of the conservatives dissents and 1-2 of the liberals do as well.
Sorry to say but you sound male if you're saying this could get worse than the abortion decisions. The Roe overturning was unconstitutional and Roe was bad law but not having it is worse. There needs to be a SCOTUS decision that the right to terminate an unwanted or unsafe or unhealhy pregnancy is a Constitutional right - otherwise we have as we're seeing, "forced labor" and lack of rights over one's own life and death and health. Women forced to be incubators is denial of a fundamental basic protection. And, Trump being forced onto a ballot in Colorado seems like it would violate state law and he did try to overthrow the government. He's disqualified himself from office, even if only Colorado has the guts to make the right call. Who cares about a unified SCOTUS when it comes to that. I'll take an honest SCOTUS even if it's a dissent. This court including Thomas is so illegitimate and discredited by now. A justice who dissents over bad law should be able to - dissent.
This us the same court that views free exercise of religion as a meaningless clause when LGBT rights are in conflict - I think that SCOTUS will grant cert and reverse
I can't imagine SCOTUS kicking Trump off the ballot. Just imagine the public outrage.
I get the Colorado Supreme Court's point about not "being swayed by public reaction"—but they kinda had a free pass there because they knew they wouldn't have the final word. No way the nine justices of SCOTUS do something this undemocratic.
I could see this being 8-1 at SCOTUS, with only Sotomayor voting to disqualify.
I'm not so sure. Isn't the argument for disqualification supported by lots of conservatives, including two prominent law professors and former judge Michael Luttig?
Which is why the Court would look for a procedural or legal out and never address the insurrection issue.
They are no conservatives.
how could Kagan Brown Jackson or even Roberts NOT vote to confirm the lower court's disqualification of Trump from the ballot? Other than the SCOTUS crazy right wing extremists (aka a majority on the court), a reasonable judge would confirm a legit disqualification from a lower court. This country has gone off the rails, to normalize Trump's behavior so widely. It's completely disqualifying.
The test for SCOTUS cannot be whether Colorado's decision was "undemocratic." The test must be whether the decision was unconstitutional. That said, you have a point. The Nine at times do merely vote (as if they were a controlling mini-democracy (mini-mob)) rather than doing as each vowed (acting with discipline to "faithfully" (always) "support and defend the Constitution of the United States against all enemies, foreign and domestic" 5 U.S.C. 3331). So maybe you're right. Maybe "undemocratic" will be dispositive.
SCOTUS wouldn't be kicking trump off the ballot, they would just be allowing a state to make a legit determination that he's not qualified - as he is most definitely not. If they overturn CO's decision, they are overreaching. and - what's the public good from forcing CO to put Trump on the ballot? it's by definition a public good to keep him off the ballot. he's a dangerous unhinged candidate who has already tried for an insurrection - he's by definition unfit and disqualified. Colorado did the right thing. And if Biden had done what Trump did I'd be saying that about Biden, this isn't a red/blue thing but a "you can't do that and be eligible to run again" thing.
Another fun thing to look for--deference to the trial court's findings of facts. Normally, an appellate court, including the justices of the Supreme Court, must give great deference to a trial court's findings of fact. The Colorado Supreme Court certainly did so when reviewing the evidence showing Trump violated section 3 of the 14th Amendment. I wonder if the US Supreme Court will do the same, assuming they get to the merits? Probably not, but another reason for the Court to avoid the merits. And, in any case, Justice Gorsuch showed us in the recent Kennedy v. School District case that the Court is willing to rewrite the facts if the facts are somehow...inconvenient.
To paraphrase the Queen of Hearts, verdict first, evidence later.
That is a good point. Let's not forget that there was a multi-day trial here.
Two quick thoughts:
1. If I were Trump's lawyer, why wouldn't I say, "Donald, you will get the GOP nomination without Colorado's delegates, and you can win the presidency without Colorado's electoral votes -- you weren't going to get them anyway. Going to the Supreme Court risks a ruling that will keep you off the ballot everywhere. Much too big a risk. Your next tweet should be, "Who needs Colorado?"
2. For the Supreme Court to let Trump stay on the Colorado ballot, all it has to do is ... nothing.
If Trump files a cert petition by Jan 4, the Colorado court's judgment will remain stayed indefinitely. "[T]he stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court." So the Supreme Court can just keep relisting the petition until it becomes moot, and Trump stays on the ballot.
Your first point is an interesting one. But my guess is that Trump is fairly confident that he'll win before SCOTUS, so he's willing to roll the dice in the hope of getting a ruling that keeps him ON the ballot across the country. Otherwise he might have to deal with other rulings like this one, but maybe in purple states that he might actually carry.
I'm certainly not saying that Trump will take the advice his lawyers ought to give him!
If you believe the recent NY Times article, the Court is perfectly willing to defer ruling when it sees an advantage. The grant of cert in Dobbs was delayed for many months because the Court did not want to seem "political." Now that is funny.
To point 1, so long as the Colorado decision is out there, Trump gets to wave the bloody flag and call even more attention to himself. If the Supremes shoot it down, he loses much of the impact. Plus as things stand, the Republicans are going to end around by abandoning the primary & going to caucus. Meaning that when Colorado doesn’t put his electors on the ballot for real a lot more hell will break loose which will probably motivate his base even more & might increase general Republican turnout in other states. And of course Trump will revel in the situation.
Meanwhile, I wonder what happens when Colorado refuses to put the actual Electors on the ballot. Do they have an independent cause of action in federal court? Might be best to wait till then...
To point 2, I can see the Supremes delaying a bit to see what happens in other states, assuming an appeal.
I am very sensitive to disenfranchisement, as a registered Republican in deep-blue California. We do vote on separate primary ballots for president, and my vote for one of the R candidates will register. But for down-ballot positions, such as US senator, the top-two coming out of the primary go on to the general election. This year, with 3 high-profile Democrats running in the senate primary, the top two will be my choices on the general ballot. This means that I won't bother to vote that ballot line at all because none of those likely candidates will appeal to me. This is a prime example of one type of disenfranchisement, the result of a Democrat super-majority in the state Legislature that put this election law in place. Everything you hear about the disfunctionality of Calif is true !
There's always the chance that with *three* high profile Dems running for that Senate seat, the GOP candidate will finish first or second.
Theoretically you're right, of course But in this state Republicans are generally so demoralized that few good people even express the desire to run in the primary. So there is a self-selection process at work after years of this top-two system having been in place. There was a good R candidate a few years ago, a former well-liked mayor of San Diego, who actually received enough primary votes to advance to the general election (where he lost to whoever the D governor was at that time--Brown or Newsom)--but this was a rare exception to the usual outcome that I described earlier. It's a discouraging situation for anyone who would like to think their vote will "count".
There have only been 2 California statewide elections that have gone D vs D. The 2016 election when Kamala Harris won the general and the 2018 election when DIanne Feinstein won. All of the gubernatorial elections and the other Senate elections have been D vs R. I think having Schiff, Lee, AND Porter in the race - all good high profile Democratic candidates battling for 60% of the vote, NONE of whom are likely to have any appeal at all for R voters - means any decent R should be able to walk into second place.
Perhaps, if everything could perfectly fall into place and the stars align.....if there is a "decent" R candidate, if all Rs in the state could line up in support of that decent R candidate, if one of the three D's vote count is significantly greater than the counts for the other two Ds. Etc. Anything is theoretically possible, but in the real world......get prepared to begin saying senator Schiff or Lee or Porter. Someday these outcomes may become history, but I doubt that will happen during my remaining years being vertical on the planet.
First, Republicans in California are not disenfranchised. They can vote like everyone else. No law passed by the Legislature bars them from voting, unlike laws passed in several states in the South--Georgia, Texas, Florida, etc. When the majority of voters goes against you, that is called losing, not disenfranchisement. That is democracy.
Second, the top-two law the writer describes was passed by the voters, not the Legislature.
I believe you are right that the law was passed by voters, but I wasn't living here at that time, so my misstatement. I do not agree that I'm not disenfranchised, however. I've voted in a number of other states in the union, and always felt that my vote "counted". While my version of disenfranchisement may not be legally correct by your definition, it's as though I am refused a ballot when I show up to vote, which is your technical definition of disenfranchisement. Call it a de facto form of being disenfranchised.
Another related question for you:
If Trump were indeed absent from the CO ballot, would that be a case of disenfranchisement or merely election interference?
How does the MAGA Trump supporter feel if he doesn't see Trump's name on the ballot? Is it any different from not being given a ballot in the first place?
If Trump runs a write in campaign he will probably win.
In fact, however, as someone pointed out in a posting or two earlier, Trump wouldn't normally win CO anyway because it's turned quite blue in recent years. So rather than expending the time and energy on a write-in campaign, they are better off just to dismiss CO entirely as they do the entire left coast (WA-OR-CA).
One can only dream!
Of the three dissents, two appear to relate to interpretations of Colorado law, while the third relates to the Constitutional question. When a state case is appealed to SCOTUS, are the determinations below about the meaning of state law something that SCOTUS can overrule? Or is the SCOTUS review limited to constitutional questions, since they are not experts on state law?
I'm inclined to agree with you (and Alexis D. above) that SCOTUS won't decide the case based on the Colorado state-law issues. There are so many other off-ramps here.
The highest court of a state should have the final say on what state law means and the US Supreme Court has said multiple times that it must respect that interpretation. But nothing is certain with this Court. They can reinvent law to get to the result they want.
In fact, however, as someone pointed out in a posting or two earlier, Trump wouldn't normally win CO anyway because it's turned quite blue in recent years. So rather than expending the time and energy on a write-in campaign, they are better off just to dismiss CO entirely as they do the entire left coast (WA-OR-CA).
Whoa, legal whirlwind for Trump!
Colorado Supreme Court says NOPE to ballot, 14th Amendment bite hard. Supreme Court showdown next?
Trump wants to block key witness in E. Jean Carroll case, but Humphreys' damage estimates still sting.
Georgia election workers sue Giuliani again, saying "enough is enough!" after $148 million verdict. ♀️
Meadows case stuck in state court, Trump claims "core political speech" defense in Georgia, and gag order fight goes on in federal court. ️️
So much drama, so little time! Which case are you watching most closely?
https://amp.knowyourmeme.com/memes/id-like-to-see-ol-donny-trump-wriggle-his-way-out-of-this-jam
The opinion is **grossly** underreasoned with respect to key issue: did Trump's conduct count as engaging in insurrection.
They basically adopt, with minimal analysis, the standard that "an insurrection as used in Section Three is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States”
But that's a pretty absurd rule. On its face (including the restatement where they say it's enough that it be intented to block the peaceful transfer of power) that includes Trump asking the police or secret service to **legally** use force to protect him from protestors blocking his path to the capital where he intends to ask Pence to refuse to count the votes.
More broadly, nothing in their standard requires any nexus between the force and unconstitutional action. If you believe (as many scholars do) that the war powers act is unconstitutional (and thus ordering us troops into battle is illegal) then does trying to increase your popularity by engaging in military activity like many past presidents count as an insurection if it's part of a scheme to avoid a peaceful transfer of power?
Even if we insist that this needs to be the motive of those engaging in the violence it's still not reasonable. Suppose Trump asked his mob to mug people and give him the money so he could bribe Pence. That's an insurrection??
The authors of the 14th amendment could have written it to disqualify anyone who attempts to subvert the us constitution via violence. They didn't. Insurrection implies something about the connection between the violence and the means of subverting the constitution that goes beyond merely being an element of a conspiracy and I'm deeply disappointed the court didn't give a more convincing analysis.
For what it’s worth, I agree with your prediction.
I agree that the US Supreme Court will reverse. I expect it to seek some reason other than a ruling on the merits-i.e., no discussion of whether Trump's candidacy violates section 3 of the Fourteenth Amendment. Standing is a possibility, but what kind of standing? Standing under Colorado law, since this case is brought in a Colorado court? Standing under federal law? That might prevent the Supreme Court from hearing the case, since it is bound by Article III constraints, but not a Colorado state court, which may have its own standing rules. Political question? That doctrine may apply to the Supreme Court's review of the case, but not to a Colorado state court. The US Supreme Court cannot impose its own views of "political questions" on a state court acting under state law. (But with this Court, who knows?)
I find the criticism of the Colorado Supreme Court as being "undemocratic" as both amusing and hypocritical. When the US Supreme Court decided Dobbs, it cared less about the views of voters. It cared even less when it decided Bruen, the gun rights case. As the recent New York Times article reveals, democracy only matters when counting to five votes at One First Street.
My money is on "it is not self-executing," Congress must pass a law.
And since Congress did pass a law, that’s where my money is, too.
As usual I start with the dissents (being naturally disagreeable). They raise whether the state statute applies, whether the state statute was complied with in the trial, and whether due process was followed, interestingly 3 issues the Supreme Court could grab on to decide the case without addressing whether Trump engaged in an insurrection. The other weak point is causation. Trump's words are not connected to the riot - yes he said bad/stupid/offensive things, and should not be reelected President - but he didn't tell the crowd to invade the Capitol. He certainly did everything up to telling them that, and created an atmosphere for someone to act, but he didn't yell fire in the theater. I agree the Supreme Court is likely to take it up, will set for March and decide by May.
But would SCOTUS want to decide the case based on issues of state rather than federal constitutional law?
I agree that the Supreme Court usually does not try to interpret state laws when the state supreme court has already interpreted them, but this is not an ordinary case and one that impacts a federal election, unlike a state contract or tort law where there is no federal interest. Which is where Due Process might kick in, as it appears there was limitations on discovery, expert testimony, presentation of evidence, etc. The Supremes might also toss the trial if the evidence was improperly admitted, namely the Congressional report which was not a standard fact finding report. Lots to unpack, and will need to read more closely tonight.
I've added it as an update to the post, but I figured I might as well note it in the comments too. If you’re looking for a helpful guide to the different issues and how they were addressed by the majority and dissenting opinions, check out this great breakdown by BriefCatch:
https://docs.google.com/spreadsheets/d/1zvtrLg7kKt8nfwXQIYL8QPWkkO8Bi3l0/edit#gid=80810950