Later today, former President Trump will ask the Supreme Court to freeze the criminal prosecution against him arising out of January 6. Here's a rundown of how we got here—and what happens next.
If SCOTUS reverses the Colorado Supreme Court saying that states can’t independently disqualify presidential candidates under Section 3 - then what would be the criteria for a state to disqualify a presidential candidate? Or is that one of the thorny bits a narrow ruling would sidestep?
Is there a compelling reason for the Chief to ask for a response from the government if the Court members intend to deny cert? I guess I'm asking if, on the shadow docket, a response is always requested. Thanks!
It's pretty common for a justice to *not* call for a response if they (1) believe that the application is patently meritless; *and* (2) are not planning to refer it to to the full Court. But the norm for applications that *are* referred to the full Court is to call for a response, even if the ultimate disposition is a denial with no public dissents. So assuming the Chief Justice is going to refer this application to the full Court, I think a call for a response is almost automatic.
Or laches—a party may not unreasonably delay seeking equitable relief: The Latin legal maxim regarding the equitable doctrine of laches is "Vigilantibus non dormientibus æquitas subvenit," which translates to "Equity aids the vigilant, not those who slumber on their rights" This maxim emphasizes that equity favors those who are diligent and take timely action to enforce their rights, rather than those who delay unreasonably and, as a result, potentially prejudice the opposing party. Clean hands denies equitable relief to a party whose own conduct was to blame in some cases. See Keystone Driller Co. v. General Excavator Co., 290 U.S. 240 (1933)
Mea culpa—there is no known cure to having written on to L.Rev.—it’s a chronic condition, occasionally fatal in connection with barroom arguments.
Yes, at least to agree to a summary disposition. It's possible that six agree to summary disposition, but the justices divide 5-4 as to what that disposition is.
If anyone ever wondered - why did English burned dissidents in Henry VIII and Bloody Mary times -
usually after long judicial procedures, and speeches, and arguments, and counter arguments - “I die King’s faithful servant but God’s first” - et cetera - this piece demonstrates what must be a British particularity - high minded litigiousness for political purposes, kind of a national sport.
Colorado has no jurisdiction over presidential candidacy. No state has.
States may neither register candidates nor prepare electors’ ballots for these offices. Article II s1 mandates that either the presidential or the vice presidential candidate voted for must reside in another state than the elector’s own. This bars individual state requirements for candidates in case no candidate for either office residing in another state qualifies. Electors' ballots must be blank.
The electors are expressly vested with power to elect the president and vice president, excluding the state’s voters. No state’s popular ballot may list candidates for president or vice president, so Colorado's interest in its ballots is not relevant.
Respectfully, I question this line of thought. Art. 14, Sec. 1 says, in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The question is, is the State of Colorado enforcing a law that abridges the privilege of citizens of the United States to vote for a candidate who was deemed by the State to be an insurrectionist?
First, the State of Colorado is only enforcing a law for its state, not any other state, that candidates must be "qualified" to hold the office for which they are running.
Second, if the Supreme Court follows your suggested line of thought (which they very well might do), then no state can make or enforce and law that requires Presidential meet the specific qualifications under the Constitution; over 35 years old etc.
It seems to me, listening to the judges questions, that this is a political turf war - should a state adjudicate whether someone committed insurrection or the federal judiciary.
This, of course, is at least my non-legal brain trying to make sense out of something that frankly appears pretty straightforward based on the actual words on parchment and historical record.
The only citizens privileged to vote for these two offices are the electors, whose ballots must be blank. This bars any vote by the general
The text sets the qualifications. States may not add qualifications because of that, & because they could use them to "game" the electors' vote as above.
States have no role in determining whether presidential or vice presidential candidates are qualified. Congress does that after the tally (see amdt Xx section 3 but it's in art II section 1 if you read carefully).
A great pleasure to read the inside the baseball on the procedural paths. There is nothing about the law that is so much missed outside our calling is that "the substance of the law hides in the interstices of procedure."
My far less informed bet is that SCOTUS sees addressing the merits is a no brainer hard no. There is not conceivable reason to take up the invitation for the opportunity of further adorning the panel's opinion. Even if somehow one could be summoned from the vasty deep for the sake of "the next time," SCOTUS has a long history of judicial economy disfavoring of deciding anything that doesn't.
Picking it up for the purpose of reversing is and out-and-out institutional death wish. A Trump II administration will consider itself free of constraint by anything Article III courts have or ever will done. No institution acts to eliminate its own power. Just. Can't. See. It.
That leaves picking it up to correct some collateral defect. I imagine in a law school hypo way, that gangs of law clerks are having rumbles over Midland Asphalt and to keep the peace, the Court reluctantly agrees to settle the controversy.
Can't take your bet since I doubt it too, much as I want them to. The Circuit cites Chiafolo v Washington. I think they may be giving the Court an opportunity to overturn that terrible holding that "voting is not necessarily a discretionary act" (which would destroy not only elections but congressional votes & even the Court's own votes!).
Puzzling take. Chiafolo v. Wash was an opinion of the Court that's less than four years old, and the only changes on the bench are Barrett for Ginsberg and Jackson for Breyer. Setting aside the merits of the precedent, why is it that the new justices might pull two of the the seven who were on that case. Thomas and Gorsuch from the concurring opinion. Or would it be other way around? Besides, I don't read the panel relying on it in their holding. Interested in your thinking.
Opining that "voting is not necessarily a discretionary act" not only exceeds their authority, it can be used to invalidate elections, legislative votes, even the Court's own votes. Congress has yet to define good behavior but this is undeniably bad behavior. If the Court fails to correct it Congress must. When DC Circuit included it in their opinion after citing another opinion covering the same point (not about voting) it may have been offering the Justices the opportunity to correct this error.
If SCOTUS reverses the Colorado Supreme Court saying that states can’t independently disqualify presidential candidates under Section 3 - then what would be the criteria for a state to disqualify a presidential candidate? Or is that one of the thorny bits a narrow ruling would sidestep?
SCOTUS could rule against Colorado based on election law, not constitutional law. For one analysis, see
https://balkin.blogspot.com/2024/02/a-users-guide-to-trump-v-anderson-part_8.html
Is there a compelling reason for the Chief to ask for a response from the government if the Court members intend to deny cert? I guess I'm asking if, on the shadow docket, a response is always requested. Thanks!
Hi David:
It's pretty common for a justice to *not* call for a response if they (1) believe that the application is patently meritless; *and* (2) are not planning to refer it to to the full Court. But the norm for applications that *are* referred to the full Court is to call for a response, even if the ultimate disposition is a denial with no public dissents. So assuming the Chief Justice is going to refer this application to the full Court, I think a call for a response is almost automatic.
The more apropos maxim in this case might be "Equity aids the vigilant" (Re: “[h]e who comes into equity must come with clean hands.”)
Or laches—a party may not unreasonably delay seeking equitable relief: The Latin legal maxim regarding the equitable doctrine of laches is "Vigilantibus non dormientibus æquitas subvenit," which translates to "Equity aids the vigilant, not those who slumber on their rights" This maxim emphasizes that equity favors those who are diligent and take timely action to enforce their rights, rather than those who delay unreasonably and, as a result, potentially prejudice the opposing party. Clean hands denies equitable relief to a party whose own conduct was to blame in some cases. See Keystone Driller Co. v. General Excavator Co., 290 U.S. 240 (1933)
Mea culpa—there is no known cure to having written on to L.Rev.—it’s a chronic condition, occasionally fatal in connection with barroom arguments.
Does summary disposition normally require 6 votes?
Yes, at least to agree to a summary disposition. It's possible that six agree to summary disposition, but the justices divide 5-4 as to what that disposition is.
If anyone ever wondered - why did English burned dissidents in Henry VIII and Bloody Mary times -
usually after long judicial procedures, and speeches, and arguments, and counter arguments - “I die King’s faithful servant but God’s first” - et cetera - this piece demonstrates what must be a British particularity - high minded litigiousness for political purposes, kind of a national sport.
Steve, I finally got it!
Colorado has no jurisdiction over presidential candidacy. No state has.
States may neither register candidates nor prepare electors’ ballots for these offices. Article II s1 mandates that either the presidential or the vice presidential candidate voted for must reside in another state than the elector’s own. This bars individual state requirements for candidates in case no candidate for either office residing in another state qualifies. Electors' ballots must be blank.
The electors are expressly vested with power to elect the president and vice president, excluding the state’s voters. No state’s popular ballot may list candidates for president or vice president, so Colorado's interest in its ballots is not relevant.
Read 'em and weep, everybody.
I love being me.
Respectfully, I question this line of thought. Art. 14, Sec. 1 says, in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The question is, is the State of Colorado enforcing a law that abridges the privilege of citizens of the United States to vote for a candidate who was deemed by the State to be an insurrectionist?
First, the State of Colorado is only enforcing a law for its state, not any other state, that candidates must be "qualified" to hold the office for which they are running.
Second, if the Supreme Court follows your suggested line of thought (which they very well might do), then no state can make or enforce and law that requires Presidential meet the specific qualifications under the Constitution; over 35 years old etc.
It seems to me, listening to the judges questions, that this is a political turf war - should a state adjudicate whether someone committed insurrection or the federal judiciary.
This, of course, is at least my non-legal brain trying to make sense out of something that frankly appears pretty straightforward based on the actual words on parchment and historical record.
The only citizens privileged to vote for these two offices are the electors, whose ballots must be blank. This bars any vote by the general
The text sets the qualifications. States may not add qualifications because of that, & because they could use them to "game" the electors' vote as above.
States have no role in determining whether presidential or vice presidential candidates are qualified. Congress does that after the tally (see amdt Xx section 3 but it's in art II section 1 if you read carefully).
A great pleasure to read the inside the baseball on the procedural paths. There is nothing about the law that is so much missed outside our calling is that "the substance of the law hides in the interstices of procedure."
My far less informed bet is that SCOTUS sees addressing the merits is a no brainer hard no. There is not conceivable reason to take up the invitation for the opportunity of further adorning the panel's opinion. Even if somehow one could be summoned from the vasty deep for the sake of "the next time," SCOTUS has a long history of judicial economy disfavoring of deciding anything that doesn't.
Picking it up for the purpose of reversing is and out-and-out institutional death wish. A Trump II administration will consider itself free of constraint by anything Article III courts have or ever will done. No institution acts to eliminate its own power. Just. Can't. See. It.
That leaves picking it up to correct some collateral defect. I imagine in a law school hypo way, that gangs of law clerks are having rumbles over Midland Asphalt and to keep the peace, the Court reluctantly agrees to settle the controversy.
But really on the last? I've gone overboard.
Can't take your bet since I doubt it too, much as I want them to. The Circuit cites Chiafolo v Washington. I think they may be giving the Court an opportunity to overturn that terrible holding that "voting is not necessarily a discretionary act" (which would destroy not only elections but congressional votes & even the Court's own votes!).
Puzzling take. Chiafolo v. Wash was an opinion of the Court that's less than four years old, and the only changes on the bench are Barrett for Ginsberg and Jackson for Breyer. Setting aside the merits of the precedent, why is it that the new justices might pull two of the the seven who were on that case. Thomas and Gorsuch from the concurring opinion. Or would it be other way around? Besides, I don't read the panel relying on it in their holding. Interested in your thinking.
Opining that "voting is not necessarily a discretionary act" not only exceeds their authority, it can be used to invalidate elections, legislative votes, even the Court's own votes. Congress has yet to define good behavior but this is undeniably bad behavior. If the Court fails to correct it Congress must. When DC Circuit included it in their opinion after citing another opinion covering the same point (not about voting) it may have been offering the Justices the opportunity to correct this error.