This morning’s oral argument in Trump v. Anderson, the Colorado case ruling Donald Trump ineligible to seem on its poll by advantage of the Fourteenth Modification’s riot clause, wasn’t notably shocking. The Supreme Court docket doesn’t wish to be within the enterprise of kicking Donald Trump off of any ballots and this morning’s listening to amounted to an prolonged jam session for the justices to determine some coherent motive to dispense with the case.
And whereas Trump’s lawyer Jonathan Mitchell wasn’t serving to the Court docket — the justices stored leaping in to supply unsolicited recommendation on the arguments he ought to be making that he by no means fairly grasped — by the top it appeared the justices got here to the conclusion that, regardless of the Fourteenth Modification means, particular person states can’t apply the riot clause to federal candidates.
Which actually makes plenty of sense. Definitely much more sense than the “what if when the Structure says the president is an officer it didn’t imply an officer?” argument Trump’s been rolling with.
Ought to this deep concern over the injury patchwork election legal guidelines trigger to this nation carry over to renewed vigor in invalidating all method of voter suppression legal guidelines? Completely. Will it? No. However the concept that the drafters of the Fourteenth Modification didn’t envision competing state interpretations of what’s and isn’t an riot appeared to attain a consensus.
Alas, Chief Justice John Roberts took the chance to supply the stupidest motive why particular person states can’t do that:
I’d anticipate {that a} goodly variety of states will say whoever the Democratic candidate is, you’re off the poll, and others, for the Republican candidate, you’re off the poll. It’ll come all the way down to only a handful of states which are going to resolve the presidential election. That’s a reasonably daunting consequence.
An election coming “all the way down to only a handful of states,” eh?
Think about a world the place the results of, say, 85 % of the electoral school is pre-ordained. In a such an unthinkable dystopia, we’d take to referring to the remaining 6 states as — and I’m spitballing right here — “battleground states” the place candidates would focus the overwhelming proportion of marketing campaign sources.
Did this man hit his head once more?
However placing apart this buffoonery, think about the horrifying cynicism at play. Trump despatched a mob into the Capitol the place they tried to kill his vice chairman — an motion Trump privately described as “the appropriate concept” and that Pence “deserves” it — and that’s arguably not at the same time as insurrectionist-y as leaning on election officers to “discover 11,780 votes” or aiding and abetting faux elector schemes. Roberts means that if the Court docket allowed THAT to depend as riot then there can be no stopping states from saying partisan disqualifications based mostly on… nothing.
I don’t know. Possibly we may have an establishment designed to adjudicate these factual disputes. We may even name it a “judicial system.”
In all seriousness, that is the Chief Justice of america suggesting that the rule of regulation within the nation is so fragile that courts can be incapable of distinguishing between a “refusing to ship the Nationwide Guard to defend towards a mob seizing the Capitol” riot and a “he tried to make airplanes seat households collectively” riot. What, precisely, is the purpose of a courtroom however to make calls like that? Whether or not he fears that courts can’t credibly make these choices or that courts received’t make these choices, it’s fairly dangerous information for the rule of regulation.
It’s the best choose within the land confessing to grave and probably irreversible institutional impotence.
No surprise he spends his annual reviews speaking about the historical past of the typewriter.
Joe Patrice is a senior editor at Above the Regulation and co-host of Pondering Like A Lawyer. Be happy to e-mail any suggestions, questions, or feedback. Observe him on Twitter when you’re fascinated by regulation, politics, and a wholesome dose of school sports activities information. Joe additionally serves as a Managing Director at RPN Govt Search.
