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PaperclipPerfector  11mo ago (text post)   29677 thread views

Culture War Roundup for the week of December 18, 2023

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If Colorado's legislature (or its sometimes-mouthpiece, the state court) says Trump can't be on the ballot, then Trump can't be on the ballot, and from a Constitutional standpoint, that's the end of the story.

That can't be right; if that were the case, the court would not have spent 16 pages addressing the claim that Trump cannot be removed from the ballot based on speech which is protected by the First Amendment.

Sorry, it would have been more precise to say "if Colorado's legislature says Trump can't be on the ballot, provided they haven't done anything unconstitutional in the process (e.g. racial discrimination or whatever)..."

In morning's light I am less satisfied with the rest of my analysis, though. The legal question of insurrection (and whether and how it may be disqualifying) is at least plausibly separable from the factual question of insurrection, though. So it will be interesting to see what happens.

So it will be interesting to see what happens.

I am skeptical that the First Amendment analysis will survive; the bar is extremely high for incitement to riot.

I don't disagree, but it's not obvious to me that the Court needs to reach the First Amendment question, which sometimes (though certainly not always) means that they won't. The First Amendment question is substantial to the question of insurrection, and however this ultimately plays out I would expect SCOTUS to prefer a procedural holding over a substantive one. So I expect the Fourteenth Amendment to play a more decisive role than the First--but you may be right!

I have given up prognosticating re what basis justices will rule on, but I am guessing that there wont be a single majority opinion. But of course the court might limit the issues presented from the get-go.

There are numerous deficiencies in the Colorado ruling both substantive (did Trump commit insurrection, how does the 1st and 14th interact) and procedural (is the 14th self executing, does it even apply to the president, even if self executing what kind of protections are provided to office seekers).

SCOTUS will rule on the procedural grounds because they don’t want this to become a tool to remove candidates from the election (eg maybe a state says that Biden gave comfort and aide to say the BLm riots and that is an insurrection). It would be easy to say Congress has to provide enabling legislation and while not entirely clear the closest thing to enabling legislation (1283) hasn’t been met and so unless and until that has been satisfied this provision won’t apply. I suspect even Kagan will join (or perhaps even write that opinion to help give it legitimacy). It can be politically neutral (eg we never get to the question of whether Trump is guilty of the underlying crime).

This is but another example though of the left’s hatred of Trump destroying institutions.

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