SCOTUS denies fast track immunity appeal by Smith. Leaving it to regular Appelate action.
so is this good or bad? trump is claiming it is a win for him, so i am assuming it is very, very, bad for him.
heard several knowledgeable people in a few podcasts. letting the appelate process work itself out, arguments on Jan 9, lets SCOTUS leave standing 2 lower courts rulings without them taking it up. Meaning its all but certain fuckstick loses in the DC. circuit. THEN SCOTUS declines to hear it leaving lower court ruling to stand. Pussy way out but result is the same. Gives cover to SCOTUS while openly allowing due process to play out.
theres precedent for no immunity, on the Civil side, with Clinton being forced to sit for deposition for Paula Jones. That was George Conway arguing for Jones......
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
SCOTUS denies fast track immunity appeal by Smith. Leaving it to regular Appelate action.
so is this good or bad? trump is claiming it is a win for him, so i am assuming it is very, very, bad for him.
heard several knowledgeable people in a few podcasts. letting the appelate process work itself out, arguments on Jan 9, lets SCOTUS leave standing 2 lower courts rulings without them taking it up. Meaning its all but certain fuckstick loses in the DC. circuit. THEN SCOTUS declines to hear it leaving lower court ruling to stand. Pussy way out but result is the same. Gives cover to SCOTUS while openly allowing due process to play out.
theres precedent for no immunity, on the Civil side, with Clinton being forced to sit for deposition for Paula Jones. That was George Conway arguing for Jones......
well if he loses, and supreme court will refuse to hear an appeal, i am ok with that.
but yeah, pussy way out. trying to maintain the facade that the supreme court is impartial and legitimate or something.
kangaroo court.
"You can tell the greatness of a man by what makes him angry." - Lincoln
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
SCOTUS denies fast track immunity appeal by Smith. Leaving it to regular Appelate action.
so is this good or bad? trump is claiming it is a win for him, so i am assuming it is very, very, bad for him.
The fix is in. Makes it more likely that POOTWH will avoid trial prior to November 5th. And definitely prior to Super Tuesday.
June or July latest for DC case...
There won’t be a decision by November and if there is and it’s unfavourable to POOTWH, it’ll be appealed and the decision will be stayed. The more voting that takes place between now and November, the more difficult it’ll be for the courts to decide to hold him accountable. It’s a farce at this point.
Justice delayed is justice denied.
Bottom line, if you’ve got money, or other people’s money, you can delay or avoid being held accountable for crimes. It’s always been this way but not to this level. Good luck.
SCOTUS denies fast track immunity appeal by Smith. Leaving it to regular Appelate action.
so is this good or bad? trump is claiming it is a win for him, so i am assuming it is very, very, bad for him.
heard several knowledgeable people in a few podcasts. letting the appelate process work itself out, arguments on Jan 9, lets SCOTUS leave standing 2 lower courts rulings without them taking it up. Meaning its all but certain fuckstick loses in the DC. circuit. THEN SCOTUS declines to hear it leaving lower court ruling to stand. Pussy way out but result is the same. Gives cover to SCOTUS while openly allowing due process to play out.
theres precedent for no immunity, on the Civil side, with Clinton being forced to sit for deposition for Paula Jones. That was George Conway arguing for Jones......
well if he loses, and supreme court will refuse to hear an appeal, i am ok with that.
but yeah, pussy way out. trying to maintain the facade that the supreme court is impartial and legitimate or something.
kangaroo court.
also relieves Thomas of the recusal decision.... or rather would relieve Roberts of Thomas's decision to recuse or likey not.
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
SCOTUS denies fast track immunity appeal by Smith. Leaving it to regular Appelate action.
so is this good or bad? trump is claiming it is a win for him, so i am assuming it is very, very, bad for him.
heard several knowledgeable people in a few podcasts. letting the appelate process work itself out, arguments on Jan 9, lets SCOTUS leave standing 2 lower courts rulings without them taking it up. Meaning its all but certain fuckstick loses in the DC. circuit. THEN SCOTUS declines to hear it leaving lower court ruling to stand. Pussy way out but result is the same. Gives cover to SCOTUS while openly allowing due process to play out.
theres precedent for no immunity, on the Civil side, with Clinton being forced to sit for deposition for Paula Jones. That was George Conway arguing for Jones......
This prospect hadn't occurred to me, but it actually makes a lot of sense. Knowing what we do about Roberts this case is his personal nightmare
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Donald
Trump cannot be a candidate for any state or federal office in the
United States of America. Section Three of the Fourteenth Amendment of
the Constitution makes this plain. No office-holding insurrectionist
can return to office. The language is clear, and the facts of his case
are not in dispute.
The Colorado Supreme Court has ruled to
this effect, and the United States Supreme Court is now called upon to
review its finding (in Anderson vs. Griswold). In my last post,
I addressed arguments against the Constitution that I heard or read in
the Midwest over the holidays. In this essay, I address the
anti-Constitutional discourse that appears in the media: that the
Constitution should be displaced by the fears of people who appear on
television.
This form of opposition to the Constitution
poses as expertise. It takes the form of advice to the Court: find some
way to allow Trump to be on the ballot, because otherwise people will
be upset. Because we are used to hearing endless conversations about
politics on television, where everyone seems to be a political advisor,
it can seem normal to reduce sections of the Constitution to talking
points. But we must pause and consider.
In fact, rejecting the
legal order in favor of what seems to be politically safe at a given
moment is just about the most dangerous move that can be made. It
amounts to advocating that we shift from constitutional government to an
insurrectionary regime. Indeed, it amounts to participating in that
shift, while not taking responsibility for doing so. Let me try to
spell this out.
In advising the Court to keep Trump on the ballot,
political commentators elevate their own fears about others' resentment
above the Constitution. But the very reason we have a Constitution is
to handle fear and resentment. To become a public champion of your own
own fears and others' resentments is to support an insurrectionary
regime.
The purpose of the insurrection clause of the Constitution
(the third section of the Fourteenth Amendment) is not to encourage
insurrections! If we publicly say that that Supreme Court should
disregard it because we fear insurrections, we are making insurrections
more likely. We are telling Americans that to undermine constitutional
rule they must only intimate that they might be violent.
To advocate pitchfork rulings is to endorse regime change; to issue pitchfork rulings is to announce regime change.
Even
in the short run, though, it is foolish to imagine that a pitchfork
ruling would avoid resentment. Every time Trump has run for president,
including this time, he has signaled that he would not accept the
results if he lost. If he is on the ballot in 2024 and loses, some
people will feel resentment. If he is on the ballot and wins, other
people will be upset; and Trump will find reasons to make his own people
upset. So even if the Constitution were just an anger management
pamphlet, nothing would be gained by procrastination.
And much
that is very essential would be lost: the rule of law, and the authority
of the Supreme Court. In the scenario in which Trump wins, the fact
that he was on the ballot will have already discredited the Supreme
Court. This makes a Trump administration (or anyone else's in similar
circumstances) much more perilous. The counsel of cowardice -- to fear
Americans, and to issue judgements on the basis of fear -- is bad not
just for the idea of constitutional order, but for the institutions that
make it possible, and for the Supreme Court in particular.
To see
this, we have to recall how constitutional regimes have been defeated
in the twentieth and twenty-first centuries. How does the rule of law
become something else? First comes the acceptance that one person is
not subject to the rule of law, for whatever bad reason -- that he was
in office; that he has violent supporters; that he is charismatic; that
we are cowards. Once that move is made, once that hole is opened, the
person so sanctified as a Leader has been empowered to change the regime
itself, and will predictably try to do so.
As
that person attempts regime change from a position of executive power,
he will (again, utterly predictably) try to discredit the other branches
of government, the legislative and the judicial. This will involve
mocking them.
We can refer to the familiar example of
Germany in the 1930s if we wish, but we need not: this is the pattern in
authoritarian transitions all around us right now. The executive (the
president, in our system) will claim extensive powers on the basis of
existing laws (Trump has already signaled this), and then argue that he
personally cannot be restrained by the courts (as Trump's lawyers have argued
in another case). After a while, the makers and the interpreters of
laws will seem irrelevant, because they are. Checks and balances cease
to function, and a constitutional order becomes something else: a
dictatorship based on the threat of violence.
The Supreme
Court now faces a test. The Constitution says what it says, and the
Colorado Supreme Court has ruled as it has ruled: that Trump may not
appear on ballots in the state. In its ruling, the Colorado Supreme
Court relied precisely on the arguments that conservative Supreme Court
justices claim to accept, arising from the plain language of the
Constitution and the intentions of those who wrote its provisions.
Because
of the clarity of the language and the explicit commitments of the
justices, a failure to affirm the Colorado ruling will be seen as
extra-legal, by pretty much everyone.
The advocates of a pitchfork
ruling, who can be found all over the political spectrum, will nod
their heads: yes, the justices of the Supreme Court are just like us; no
better and no worse; just people with human failings and fears;
ultimately all that matters in life is convenience. This position,
while it seems friendly to the Court, removes all dignity from its
justices, and kicks away the foundations of the rule of law.
There
are many Americans on the Left or Center who do not accept that counsel
of cowardice, who disagree with textualism and intentionalism as the
modes of interpreting the Constitution, but who agree that they are
modes of interpreting the Constitution. Should the justices who have
made an ostentatious show of these modes of interpretation reject them
utterly in a case of such clarity, such people on the Left and Center
will continue to support the rule of law. But they will find it
difficult to believe that the Supreme Court is doing the same.
There are conservatives who believe in textualism and intentionalism; among them are the legal scholars
who have produced the best and clearest arguments in favor of the
application of the insurrection clause to Trump. Should the
conservative justices of Supreme Court reject their arguments, such
conservatives will find themselves in a similar position: they will
continue to support the rule of law, but will find it hard to believe
that the Supreme Court is doing so.
Elsewhere on the Right, there are people knowingly making the bad arguments I discussed in earlierposts;
should the Supreme Court endorse those bad arguments, they will assume
that their own cynicism is shared by Supreme Court justices. On the
insurrectionist far Right, there is no concern for the rule of law, but
rather the belief that everything in the end is a matter of bluster and
intimidation. For them, a pitchfork ruling would just be confirmation
that waving pitchforks is the right thing to do.
Should the
United States Supreme Court fail to uphold the ruling of Colorado
Supreme Court, in other words, there will be no group of Americans who
will conclude that it has upheld the law. Reasoning from different
assumptions and different commitments, almost everyone will find their
way to a broad American consensus: the Supreme Court acted from
convenience and cowardice. People who are afraid and people who are not
afraid; people who threaten and people who do not threaten; people of
various legal and political convictions: all would understand such a
verdict as a pitchfork ruling.
And here's the rub: correctly.
In
a regime change towards authoritarianism, the executive mocks the
courts. So it does not help when the courts make themselves laughable.
The Supreme Court, in its consideration of Anderson vs. Griswold, risks
making a mockery of itself. And ridicule can be an element of an
overall political transformation.
The point of sketching out this
scenario is not to say that it is inevitable. It is not. The justices
of the Supreme Court have choices to make. And our actions matter, no
matter what the justices do. But our actions are informed by our
concepts.
We should be aware of what sort of politics we are
practicing, in the service of what kind of regime. If we think that the
Constitution yields to our fears and others’ resentments, we are acting
politically, and in a certain direction: we are contributing to an
authoritarian transition, where the rule of law is displaced by threats
of violence. If we say that the Constitution has a dignity beyond fear
and resentment, we are acting politically, in another direction: towards
the maintenance and improvement of the rule of law.
Thinking
about... is a reader-supported publication. To receive new posts and
support my work, consider becoming a free or paid subscriber.
Thank you for reading Thinking about.... This post is public so feel free to share ......
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
At what point does the left realize the strategy of indicting and prosecuting trump only makes him stronger?
So you believe the alternative of letting these things go unchecked is the superior option? Why have laws if you’re unwilling to enforce them?
I am pointing out the strategy is clearly not working. The “checking” of presidential power has always been with the voters. It has never been trusted in full to the courts.
Comments
"Well, you tell him that I don't talk to suckas."
Libtardaplorable©. And proud of it.
Brilliantati©
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
but yeah, pussy way out. trying to maintain the facade that the supreme court is impartial and legitimate or something.
kangaroo court.
"Well, you tell him that I don't talk to suckas."
June or July latest for DC case...
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Justice delayed is justice denied.
Bottom line, if you’ve got money, or other people’s money, you can delay or avoid being held accountable for crimes. It’s always been this way but not to this level. Good luck.
Libtardaplorable©. And proud of it.
Brilliantati©
also relieves Thomas of the recusal decision.... or rather would relieve Roberts of Thomas's decision to recuse or likey not.
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
"Well, you tell him that I don't talk to suckas."
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
EV
Toronto Film Festival 9/11/2007, '08 - Toronto 1 & 2, '09 - Albany 1, '11 - Chicago 1
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Thinking about...
The Pitchfork Ruling
The Trap the Commentariat Sets for the Court
Donald Trump cannot be a candidate for any state or federal office in the United States of America. Section Three of the Fourteenth Amendment of the Constitution makes this plain. No office-holding insurrectionist can return to office. The language is clear, and the facts of his case are not in dispute.
The Colorado Supreme Court has ruled to this effect, and the United States Supreme Court is now called upon to review its finding (in Anderson vs. Griswold). In my last post, I addressed arguments against the Constitution that I heard or read in the Midwest over the holidays. In this essay, I address the anti-Constitutional discourse that appears in the media: that the Constitution should be displaced by the fears of people who appear on television.
This form of opposition to the Constitution poses as expertise. It takes the form of advice to the Court: find some way to allow Trump to be on the ballot, because otherwise people will be upset. Because we are used to hearing endless conversations about politics on television, where everyone seems to be a political advisor, it can seem normal to reduce sections of the Constitution to talking points. But we must pause and consider.
In fact, rejecting the legal order in favor of what seems to be politically safe at a given moment is just about the most dangerous move that can be made. It amounts to advocating that we shift from constitutional government to an insurrectionary regime. Indeed, it amounts to participating in that shift, while not taking responsibility for doing so. Let me try to spell this out.
In advising the Court to keep Trump on the ballot, political commentators elevate their own fears about others' resentment above the Constitution. But the very reason we have a Constitution is to handle fear and resentment. To become a public champion of your own own fears and others' resentments is to support an insurrectionary regime.
The purpose of the insurrection clause of the Constitution (the third section of the Fourteenth Amendment) is not to encourage insurrections! If we publicly say that that Supreme Court should disregard it because we fear insurrections, we are making insurrections more likely. We are telling Americans that to undermine constitutional rule they must only intimate that they might be violent.
To advocate pitchfork rulings is to endorse regime change; to issue pitchfork rulings is to announce regime change.
Even in the short run, though, it is foolish to imagine that a pitchfork ruling would avoid resentment. Every time Trump has run for president, including this time, he has signaled that he would not accept the results if he lost. If he is on the ballot in 2024 and loses, some people will feel resentment. If he is on the ballot and wins, other people will be upset; and Trump will find reasons to make his own people upset. So even if the Constitution were just an anger management pamphlet, nothing would be gained by procrastination.
And much that is very essential would be lost: the rule of law, and the authority of the Supreme Court. In the scenario in which Trump wins, the fact that he was on the ballot will have already discredited the Supreme Court. This makes a Trump administration (or anyone else's in similar circumstances) much more perilous. The counsel of cowardice -- to fear Americans, and to issue judgements on the basis of fear -- is bad not just for the idea of constitutional order, but for the institutions that make it possible, and for the Supreme Court in particular.
To see this, we have to recall how constitutional regimes have been defeated in the twentieth and twenty-first centuries. How does the rule of law become something else? First comes the acceptance that one person is not subject to the rule of law, for whatever bad reason -- that he was in office; that he has violent supporters; that he is charismatic; that we are cowards. Once that move is made, once that hole is opened, the person so sanctified as a Leader has been empowered to change the regime itself, and will predictably try to do so.
As that person attempts regime change from a position of executive power, he will (again, utterly predictably) try to discredit the other branches of government, the legislative and the judicial. This will involve mocking them.
We can refer to the familiar example of Germany in the 1930s if we wish, but we need not: this is the pattern in authoritarian transitions all around us right now. The executive (the president, in our system) will claim extensive powers on the basis of existing laws (Trump has already signaled this), and then argue that he personally cannot be restrained by the courts (as Trump's lawyers have argued in another case). After a while, the makers and the interpreters of laws will seem irrelevant, because they are. Checks and balances cease to function, and a constitutional order becomes something else: a dictatorship based on the threat of violence.
The Supreme Court now faces a test. The Constitution says what it says, and the Colorado Supreme Court has ruled as it has ruled: that Trump may not appear on ballots in the state. In its ruling, the Colorado Supreme Court relied precisely on the arguments that conservative Supreme Court justices claim to accept, arising from the plain language of the Constitution and the intentions of those who wrote its provisions.
Because of the clarity of the language and the explicit commitments of the justices, a failure to affirm the Colorado ruling will be seen as extra-legal, by pretty much everyone.
The advocates of a pitchfork ruling, who can be found all over the political spectrum, will nod their heads: yes, the justices of the Supreme Court are just like us; no better and no worse; just people with human failings and fears; ultimately all that matters in life is convenience. This position, while it seems friendly to the Court, removes all dignity from its justices, and kicks away the foundations of the rule of law.
There are many Americans on the Left or Center who do not accept that counsel of cowardice, who disagree with textualism and intentionalism as the modes of interpreting the Constitution, but who agree that they are modes of interpreting the Constitution. Should the justices who have made an ostentatious show of these modes of interpretation reject them utterly in a case of such clarity, such people on the Left and Center will continue to support the rule of law. But they will find it difficult to believe that the Supreme Court is doing the same.
There are conservatives who believe in textualism and intentionalism; among them are the legal scholars who have produced the best and clearest arguments in favor of the application of the insurrection clause to Trump. Should the conservative justices of Supreme Court reject their arguments, such conservatives will find themselves in a similar position: they will continue to support the rule of law, but will find it hard to believe that the Supreme Court is doing so.
Elsewhere on the Right, there are people knowingly making the bad arguments I discussed in earlier posts; should the Supreme Court endorse those bad arguments, they will assume that their own cynicism is shared by Supreme Court justices. On the insurrectionist far Right, there is no concern for the rule of law, but rather the belief that everything in the end is a matter of bluster and intimidation. For them, a pitchfork ruling would just be confirmation that waving pitchforks is the right thing to do.
Should the United States Supreme Court fail to uphold the ruling of Colorado Supreme Court, in other words, there will be no group of Americans who will conclude that it has upheld the law. Reasoning from different assumptions and different commitments, almost everyone will find their way to a broad American consensus: the Supreme Court acted from convenience and cowardice. People who are afraid and people who are not afraid; people who threaten and people who do not threaten; people of various legal and political convictions: all would understand such a verdict as a pitchfork ruling.
And here's the rub: correctly.
In a regime change towards authoritarianism, the executive mocks the courts. So it does not help when the courts make themselves laughable. The Supreme Court, in its consideration of Anderson vs. Griswold, risks making a mockery of itself. And ridicule can be an element of an overall political transformation.
The point of sketching out this scenario is not to say that it is inevitable. It is not. The justices of the Supreme Court have choices to make. And our actions matter, no matter what the justices do. But our actions are informed by our concepts.
We should be aware of what sort of politics we are practicing, in the service of what kind of regime. If we think that the Constitution yields to our fears and others’ resentments, we are acting politically, and in a certain direction: we are contributing to an authoritarian transition, where the rule of law is displaced by threats of violence. If we say that the Constitution has a dignity beyond fear and resentment, we are acting politically, in another direction: towards the maintenance and improvement of the rule of law.
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Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
"Well, you tell him that I don't talk to suckas."