Do Your Job … SCOTUS

Alito goes consequentialist.

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Sarah and David cover the oral argument at the Supreme Court regarding the Colorado Supreme Court’s decision to block Trump from the ballot in the state.

The Agenda:
—David’s unpleasant déjà vu
—All the ways Colorado will lose
—The textualist approach
—What process is due?
—Non-Mutual Collateral Estoppel
—David responds to Justice Kagan
—Griffin’s case
—U.S. Term Limits, Inc. v. Thornton
—The advocates

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Comments (113)
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  1. Francislyo

    A hypo that SCOTUS is unlikely to consider:
    President Trump asked his supporters to march to the Capitol to “stop the steal”, and to “fight like hell”, knowing they had weapons (hence his call to remove the magnetometers.) He said he would go with them but was reportedly prevented, against his protest, from doing so by his security staff.

    If Trump had prevailed and gone to the Capitol, and there led his supporters in wrongfully entering and assaulting the Capitol police, would this make any difference to SCOTUS?

    I sincerely hope SCOTUS does NOT write a ruling that would permit this sort of treasonous behavior by a defeated president.

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  2. BenP

    At the end, David says he's not convinced that elements of the far left wouldn't do exactly what the far right did on January 6th. I agree. If Clinton had refused to concede in 2016 and said that the election results were fraudelent or tainted by Russian interference and gotten on board with the "stop Trump from being sworn in" movement, plenty of her voters would have gone along with it. I don't know whether they'd have violently stormed the capitol (the far right harbors 1776 fantasies that the far left lacks), but they would definitely have been on board with "undermining the Constitution" or "ending democracy". We saw a little bit of it after Trump won the election; Martin Sheen starred in a "please please please please subvert democracy" ad, attached to a change.org petition calling for "faithless electors" that gathered almost 5 million signatures. The movement never took off because Clinton conceded. Had she not, a massive chunk of her supporters were ready to take the same anti-democracy route that Trump's supporters took after he refused to concede in 2020.

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  3. Affable Misanthrope

    I'm glad the conservative justices have discovered consequentialism. Now let's revisit Heller!

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  4. Samuel Cole

    Long time listener; first time caller.

    I'm an originalist, albeit pretty liberal attorney. And I wanted to get in my two cents on the Hawaii gun case. David seemed skeptical, and I am less so. Rather than writing something new, though, I thought I'd share a conversation I had with a more conservative friend on the opinion. My friend's name is Mark, and I'm Sam.

    Mark: "Well, Hawaii has a higher power than the Constitution to declare it invalid.

    Hawaii's highest court ruled Wednesday that Second Amendment rights as interpreted by the U.S. Supreme Court do not extend to Hawaii citizens, citing the 'spirit of Aloha.'

    https://www.msn.com/en-us/news/us/hawaii-court-says-spirit-of-aloha-supersedes-constitution-second-amendment/ar-BB1hZJDv?cvid=be5c2ebcdd0f4e149f58ac181d6024ef&ocid=winp2fptaskbarhover&ei=17"

    Sam: "I'll need to read that opinion. I do NOT trust Fox News because I have experience with them outright lying about court decisions."

    Mark [quoting from the article]: "In the ruling, which was penned by Hawaii Supreme Court Justice Todd Eddins, the court determined that states 'retain the authority to require' individuals to hold proper permits before carrying firearms in public. The decision also concluded that the Hawaii Constitution broadly 'does not afford a right to carry firearms in public places for self defense,' further pointing to the 'spirit of Aloha' and even quoting HBO's TV drama 'The Wire.'"

    Sam: "I do not know. But I would bet money that a Hawai'i court did not say that the Spirit of Aloha controls. Fox News is not a reliable source."

    [I read the opinion]

    Sam: "Reading the opinion. Unsurprisingly, Fox News completely misconstrues it."

    Mark: "Are you saying you read the whole opinion and it did not reference the 'spirit of aloha' at all?"

    Sam: "It does reference it!

    But it is a 53-page opinion, and it is simply inaccurate to say that it relied solely on the 'spirit of Aloha' to 'trump' the United States Constitution. It's actually an extremely federalist decision that seems well-reasoned."

    Sam: "It would be hard to explain the decision through text. But suffice it to say, the Fox News article is inaccurate for exactly the reasons I suspected."

    Sam: "The Fox News headlines says 'Hawaii court says 'spirit of Aloha' supersedes Constitution, Second Amendment.' That is FALSE, full stop."

    Mark: "Ok, thanks. Glad I have someone who can help navigate these issues."

    Sam: "It does have a short section on 'the Aloha spirit' after 30 pages otherwise analyzing the text, history, and tradition of Hawai'i's constitution. But even there, the 'Aloha spirit' seems to be a term of art basically meaning Hawai'i's legal traditions, which shed light on the meaning of Hawai'i's constitution adopted in 1950 (not 1789). It invokes the 'Aloha spirit' in interpreting HAWAI'I's (1950) constitution, not the federal constitution. There are also technical legal reasons why the court did not even address the constitutionality of the license requirement. (The defendant in the case did not have standing to challenge the licensing requirement because he did not attempt to obtain a license.)"

    Sam [after a few days to digest the opinion]: "To sharpen my point a little on the Hawai'i decision so you don't misunderstand me:

    (1) The court does editorialize and make cutesy pop culture references. I do not like editorializing or cutesy pop culture references because I think it's beneath the dignity of a court. THAT SAID, there is nothing formally improper about it, lots of courts do it, and in some ways (see point 3) the editorializing is healthy in a federalist system.

    (2) The people who say that the court "ignored" the federal constitution or suggest that the opinion was completely fluff or facially poorly reasoned are NOT BEING ACCURATE. It is a well-reasoned, completely reasonable 50+ page opinion.

    (3) Someone like you (and me, to a lesser extent) might think that the Supreme Court criticism and editorializing is healthy for a state court to do in a federal system. The court basically says, 'I understand we're bound by the SCOTUS interpretation of the federal constitution. But in our opinion as a sovereign state, SCOTUS got it wrong, and Hawai'i is not going to follow SCOTUS down the same poorly reasoned path.' It's a very federalist opinion that, at the same time, gives the federal government its due.

    And Hawai'i DOES NOT HAVE TO follow in its interpretation of the state constitution the Supreme Court's interpretation of similar language in the federal constitution. This is an IMPORTANT principle of federalism. (For instance, a state court during the Roe regime did not need to interpret its own Due Process clause to create a right to abortion even if the language of the state Due Process clause is copied and pasted from the federal Constitution.) Hawai'i was doing something very similar here with the Second Amendment."

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  5. Iconoclast

    Call me a consequentialist, but our President can’t be like Schroedinger’s cat - simultaneously qualified and disqualified from holding the office of President.

    If Colorado’s ruling is sustained, what happens if Trump wins the national election? Will Colorado ban him from being President with respect to Colorado?

    There is already a process for judicially determining if someone has abetted an insurrection -charge him under the criminal statute and convict him. (Here’s looking at you Merrick Garland.)

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  6. 698Kroll

    Not versed in the law, really enjoy listening as I learn quite a bit. The comments section is also educational at times. Had a second listen this morning (remnant & AO are my preferred morning walk company).
    As much as I want DJT to go away, that chance was in the botched impeachment. Congress (both the house in how it conducted & wrote the articles and the senate in not looking past the poor choice of framing and failing to convict).
    The sad fact is all of this is trying to squeeze a litigation path thru a political issue and is dangerous ground for the judicial branch, the Chief Justice is well placed to keep the court focuses on that, in my opinion.
    There exists a legal standard for insurrection and not only is DJT not charged with it, the DOJ has taken pains to not allow any J6 defendant to claim DJT actions as part of what/why they did anything. Mr. Smith's charges are for election interference and are tenuous at best, but could possibly be grounds for another go at impeachment if DJT is convicted.

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  7. IHFraser

    Surely, the answer to Griffin's Case is the de facto doctrine, which has long been a basic constitutional principle in almost all common law jurisdictions. Acts done by an officer with de facto authority may be confirmed even if the officer never had, or lost, the required de jure authority. Even assuming that Trump was legally disqualified (de jury) by the events of January 6, the actions he took after January 6 will not now automatically set aside for want of authority: see, for example, Ryder v. United States, 515 U.S. 177 (1995)

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  8. Rpeterson

    What do y'all think of the argument one hears occasionally that, fine, maybe Congress has to decide who is an insurrectionist but the impeachment and majority vote on removal ought to count? (Clearly this is specious since Colorado didn't argue it but why precisely not?)

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    1. Kbirkett

      Yes, I've heard and wondered the same.

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  9. Jpliving

    I am looking forward to your discussion of the Hawaii decision. And not even mostly the merits. But rather the weird way in which it is written. With very short sentences. Often beginning with conjunctions.

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  10. VV

    I'm puzzled by the argument that since Congress can remove the disability/disqualification, then only Congress can effectuate it by a vote. Does not the fact that Congress can vote and remove the disability presuppose that the disability already exists?

    Also I'm not sure if that would be evaluated at the Jan 6th counting of the electoral votes. Theoretically, someone who is disqualified by 14A could be elected president and then Congress could vote to remove the disqualification ten minutes before inauguration. Or if we really want to get crazy, could the Vice-President-Elect serve as acting president and then you have a disqualified President-Elect who sits in limbo after what would be the start of their term until Congress decides to remove the disqualification?

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