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PaperclipPerfector  11mo ago (text post)   26473 thread views

Culture War Roundup for the week of January 15, 2024

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There is a strict "did Trump commit insurrection (or aid/comfort enemies) as defined by 14th Amendment" option.

The Supreme Court in its role as an appeals court would not decide this question; it's a question for a trial court. As an appeals court it can only say that the legal theory the court used to decide Trump committed insurrection is wrong, or that factual findings it made were baseless or wrongly admitted (e.g. admitting January 6 hearing testimony). And even the trial court can only look at the case put before it; nothing the Colorado courts do precludes a Federal trial for insurrection in DC. So the only way the Court can actually settle the issue is by declaring that as a matter of law, Trump cannot be disqualified full stop.

That said, I think you're being insufficiently paranoid. There's a lot of problems with any result that doesn't either clearly disqualify him, or clearly mark attempts to disqualify as violating a clearly established statutory or constitutional right, that are far bigger than Trump or the 2024 elections.

Those problems are unavoidable no matter what the result. Anything that clearly disqualifies him marks the whole Federal election system as clearly illegitimate to maybe 30% of the population, maybe a bit more. Anything that does not marks the Supreme Court as clearly illegitimate to maybe 40% of the population (a 40% including most of the elites and those in government), maybe a bit more. Anything that leaves it muddy will have to be resolved one way or another by the election, unless Trump dies.

The Supreme Court in its role as an appeals court would not decide this question; it's a question for a trial court. As an appeals court it can only say that the legal theory the court used to decide Trump committed insurrection is wrong, or that factual findings it made were baseless or wrongly admitted (e.g. admitting January 6 hearing testimony).

While extraordinarily unlikely, it's at least procedurally possible for SCOTUS to provide dicta far broader than a ruling itself, such as defining Section 3 insurrection specifically or requiring specific types and grades of behavior that isn't present here. People can (and probably will!) still defy that! cfe my Bruen rants. But it's an option that makes those things defiance.

And even the trial court can only look at the case put before it; nothing the Colorado courts do precludes a Federal trial for insurrection in DC.

That's fairer, and while the timeline for an insurrection trial is wildly implausible, there's nothing preventing people from taking some other federal conviction and (even implausibly) reading it as a Section 3-disqualifying behavior.

Anything that leaves it muddy will have to be resolved one way or another by the election, unless Trump dies.

I wish I was that optimistic: this weapon doesn't get put away just because the highest-profile target disappears, and it doesn't stop on November 6th or even January of next year.

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