Did the Trump Colorado Decision Make You Feel Crazy? You’re Not Alone.
Added 2024-03-08 08:17:02 +0000 UTCEpisode 1012
Does anyone else feel like the Supreme Court decided a part of the Constitution just doesn't exist anymore? Perhaps you're like Listener Thomas S, who found this decision absolutely nuts. If so, you're in luck, because in this episode of OA, Thomas throws every argument at actual lawyer Matt Cameron for why this decision sucked. How does the actual lawyer feel? Did SCOTUS get it right actually? Find out!
Comments
I think by leaving it to die in the state court, they can maintain the defense in the court of public opinion that it was one rogue state. This way they've controlled the narrative to be a legalese argument, rather than the focus being on whether he was an insurrectionist or not.
I let one slip on my first opening statement and it was silent but deadly minus the silent.
2024-03-13 14:56:32 +0000 UTCI didn't mind the format but this episode lacked the one thing I was really hoping to hear from the defense perspective: is there any legal strategy reason the Trump lawyers didn't object to the insurrectionist claim in the lower courts, even if just to be able to raise it here? It almost seems like failing up. It makes me feel conspiratorial to say this but it feels like the Thomas wing may have tipped them off that the court had 5 votes to keep him on the ballot so long as they didn't have to sully themselves by saying whether the former president really is an insurrectionist.
Drew Vogel
2024-03-12 23:53:46 +0000 UTCI'm not a lawyer so I could be off base here. From what I understand though, collateral estoppel or non-mutual issue preclusion could apply to state courts who would then be bound by a finding that a candidate did or did not engage in insurrection. If that is correct, the Colorado Supreme Court decision would bind other state courts if anyone were to have a cause of action to sue to enforce Section 3 in their state. I could be wrong. 🤷
Shad Riley
2024-03-10 04:48:40 +0000 UTCenjoyed the special episode format! thanks for the flexibility to keep things fresh, while also maintaining the stability we love
Jobu Tupaki
2024-03-09 14:07:22 +0000 UTCI do like the one time Bush V Gore answer you gave at the end. “We’ve seen clear evidence and he is guilty of insurrection and find for these circumstances he is off the ballots”. Was hoping for something like that, especially with the Ga phone call and the evidence shown during the Jan 6 hearings, those would count for something.
Reese
2024-03-08 18:51:16 +0000 UTCThis episode was great and reminded me of the best of OA from years past on things like Stare Decisis and Senate rules (Merrick Garland). Covering topics that are hard to find good information on because they're topics that no one in our lifetime has had to think about and have relevance to todays politics.
Matthew Williams
2024-03-08 17:49:54 +0000 UTCEach state determines their own ballot so whats the problem? Each state would just do their own thing.
Matthew Williams
2024-03-08 17:46:33 +0000 UTCInteresting take. I feel like I'm going to be chewing on that for a while.
Gmork
2024-03-08 17:12:02 +0000 UTCCould the FEC have the standing to sue to keep Trump off the ballot in every state?
Matthew Williams
2024-03-08 17:07:47 +0000 UTCBy way of getting my personal bias out here: Bush v. Gore came out just before I went to law school and changed my entire understanding of what the Supreme Court is and does (or can do anyway), so I have for the most part come at the law since as a lefty realist/living Constitutionalist and from that perspective I'd say that is pretty much it's always been done--for good and ill. From John Marshall simply deciding that the Court had the authority to say what the law is (an open question at the time) to the Court blithely upholding the title of white colonists to land they stole from natives all the way to Brown v. Board being decided primarily on psychological research to Blackmun clumsily drawing lines around when abortions could or could not happen in Roe to the complete wholecloth manufacture of a script that police had to read to suspects in Miranda to the conservatives on the Court simply handing the election to GWB in 2000 to Scalia doing his Founders seance thing in Heller (et many al) to Alito making up "deeply rooted rights" in Dobbs--and on and on. These are just some of the most prominent examples (with quite a few more in the Warren years than I've mentioned here, this is from exhaustive), but fundamentally IMO anyone at this point who expects the Court be an objective by-the-book balls-and-strikes kind of institution is setting themselves up for severe mental health complications.
Matt Cameron
2024-03-08 17:06:30 +0000 UTC⭐⭐!!phoebe smith 2028!!⭐⭐
lauren
2024-03-08 16:56:37 +0000 UTC(And ultimately while it does kind of seem like the very definition of the kind of "political question" which SCOTUS hates to wade into, the highest federal court certainly should have the right to reserve power unto itself to settle this particular issue with finality.)
Matt Cameron
2024-03-08 16:40:45 +0000 UTCWe did *very* briefly touch on this and I mentioned it in passing as an option but IMO there is no clear legal vehicle to bring this challenge before a federal trial court. (Federal litigation experts may well disagree, but if there is a serious argument for this I haven't seen it anywhere FWIW.) Even assuming there were there are all kinds of potential issues here just as there would be with every other possible option, but I do agree that it would be much cleaner and simpler if there were one (or more likely several which SCOTUS would take to review at once) record to review from a jurisdiction which clearly has authority to do it. There are very real issues of fact in the "insurrection" question which don't exist for the other grounds for disqualification, and since we haven't actually had a Second Civil War in which hundreds of members of Congress, military officers, etc simply pulled out and supported a breakaway republic the lines are nowhere near as clean as they were in 1868. (I was conceding for the purposes of this episode (and personally believe) that Trump meets the definition of an insurrectionist for the purposes of Sec 3, but there is still a reasonable argument against that and valid complaints to be had about how the CO court got there, and to my own extreme annoyance my lawyerbrained answer continues to be that in the absence of clear definition there has to be some kind of due process to get there.)
Matt Cameron
2024-03-08 16:39:23 +0000 UTCExpediency should a consideration, but when it's the sole grounds used for ignoring Constitutional text, then the Constitution becomes worthless. We're left with a court whose own views of expediency are now the highest law in the land.
Gmork
2024-03-08 16:24:29 +0000 UTCAllowing states to individually enforce Section 3 would likely run into issues. For instance, if a candidate was found to not have engaged in insurrection by a state court, would a lawsuit filed in another state be precluded? Would states be bound by a decision finding a candidate did engage in insurrection from another state court?
Shad Riley
2024-03-08 16:08:55 +0000 UTCone point I meant to make is that consequentialist/"parade of horribles"/public policy arguments have traditionally been more of a liberal/leftist argument made by people who do actually care about the consequences of court rulings, so "expediency" isn't always the worst thing
Matt Cameron
2024-03-08 15:40:29 +0000 UTCYes! exactly what i was thinking even listening to the arguments. Because I felt the CO lawyer didnt argue it very well. And the fact that SCOTUS entertained the office/officer question was ridiculous. That should have never been taken serious ever. He takes his oath when he is inaugurated. Also this coming from the party of “lets let the states decide” ??
Reese
2024-03-08 15:11:54 +0000 UTCThere is a bowling alley in the basement.
Austin Flake
2024-03-08 15:11:36 +0000 UTCWouldn’t metadata-textualism/originalism make it an 8-1 decision?
Austin Flake
2024-03-08 15:07:58 +0000 UTCPfft don't people know it's not called the Executive Office of the President, it's actually the Executive Collaborative Co-working/Creative Space. It has foosball, an assortment of small-batch artisanal coffees & there's a bouldering wall in the Oval... room.
Bald Weasels Scrotal Manscaping
2024-03-08 14:16:00 +0000 UTCI also think it was cowardly for the liberals to join in concurrence. Dissent and say it with your chest. No more of this “protecting the legitimacy of the court” bullshit. They are making illegitimate decisions.
Odin The Law Dog
2024-03-08 14:12:54 +0000 UTCThat being said, I don’t agree this would throw the world into chaos. I think the is would help to define the section of the constitution better because the court to make determinations as to what is and isn’t insurrection.
Odin The Law Dog
2024-03-08 14:11:01 +0000 UTCI think Texas was a poor example to use as a comparison to Colorado here. All that it would take, if the CO decision stood, would be a Republican AG and Republican Barr majority on a state Supreme Court to disqualify the dem candidate. I think a better example would be Wisconsin or North Carolina, a potential swing state that has a captured legislature.
Odin The Law Dog
2024-03-08 14:07:47 +0000 UTCThe *craaaazy* concept of every state litigating this isn't any crazier than Trump litigating 60+ election suppression lawsuits after he lost in 2020.
Gmork
2024-03-08 14:04:43 +0000 UTCThe "this would be messy" argument adopted by the court isn't textualist or originalist or the result of any legitimate form of Constitutional interpretation. It's the court choosing not to enforce clear language out of expediency.
Gmork
2024-03-08 13:31:39 +0000 UTCI liked this, and I kinda agree with Matt, I think it's not good to do this on an individual state by state basis. But there's one thing that I didn't hear you discuss, which I think (from my layman's brain) could have been a third option. Why couldn't the court have said 'this can't be decided by 50 individual states and therefore any action to disqualify must come in federal court' I really think that the whole 'must be an act of congress' was a fuck you to anyone that thinks Trump shouldn't be on the ballot.
Michael Rops
2024-03-08 12:50:18 +0000 UTCLoved the argument!
Older than boomer
2024-03-08 12:16:04 +0000 UTC
