Keep in mind that the SCOTUS majority have spent decades advocating the doctrine of “originalism”.
Originalists think that the 14th means whatever the Reconstructionists who wrote it thought it meant. And it’s abundantly clear that Reconstructionists did not intend to prosecute former Confederates but still wanted to keep them out of office.
If the SCOTUS majority ignores what Reconstructionists thought in order to help Trump, it would be like the Pope ignoring Catholic doctrine in order to help Trump. They can do it, but they know their legal theory will never be taken seriously again. And that’s a big deal, since Justices are ultimately remembered for their legal theories.
True, but politics tends to put an asterisk by justices’ rulings. In Bush v. Gore, the Ds were arguing states rights, while the Rs were arguing federal supremacy. Completely against their usual positions, but everyone knows why.
True, but politics tends to put an asterisk by justices’ rulings. In Bush v. Gore, the Ds were arguing states rights, while the Rs were arguing federal supremacy. Completely against their usual positions, but everyone knows why.
Bush v Gore came down to two things, and it’s hard to find real fault with either.
The first is an Equal Protection claim - Gore wanted to recount certain parts of the state under different rules than the rest of the state was counted under. The argument was that doing so violated equal protection under the law and the entire state should be counted under one standard.
The other is that election deadlines are legal and enforceable. SCOTUS was actually really quick in handling Bush v Gore (Gore started his final recount on a Friday, injunction in less than 24 hours, oral arguments Monday, decision on Tuesday morning) and they still only released their opinion 2 hours before the deadline for election results to be certified.
Ironically, based on studies done by others after the election Gore still would have lost had his last recount been allowed to go through as planned (presuming he didn’t demand further recounts after that), but he might potentially have narrowly won if the entire state were recounted under the standard he wanted to use, but that wasn’t a recount he ever called for and it wasn’t a recount that could realistically have been completed under the deadline.
You throw out election deadlines, and we’d have Trump still to this day trying to legally challenge Biden’s election. You’ll notice he stopped doing that in early December and switched to just being a bloviating blowhard trying to rile up his followers over it for that sweet, sweet scam money and maybe an off chance at a successful overthrow of the government that he ideally could plausibly deny if it went wrong.
States rights is associated with Republican elected politicians, but not so much the SCOTUS majority. There are many examples of Roberts et al ruling against states rights, in fact they recently sided against Texas in the state v federal border dispute. And they ruled against the independent state legislature theory last year.
Originalism, on the other hand, is near and dear to their hearts. They have basically never embraced another doctrine.
Fair point, but if the vote goes 6-3 and the Rs ignore originalism entirely in their opinion, I don’t think anyone would expect their adherence to the doctrine to change in the next case or any cases afterward. It’ll go down in the history books as a politically-motivated outlier case, not dissimilar to Bush v. Gore.
Sure, they would still adhere to originalism. But they would knowingly create a precedent where it doesn’t apply. Future Justices are supposed to respect precedent, so this means handing future liberal courts a useful new tool to dismantle their contribution to legal theory.
Is saving Trump from himself worth ending their own legacy?
I’d really like to think that these justices still care about things like legacy and consistency, but I’m not sure that’s the case. I suppose we’ll find out soon enough.
That, or they’ll punt the ruling on some bullshit like waiting for Congress to act. That seems most likely at this point.
Keep in mind that the SCOTUS majority have spent decades advocating the doctrine of “originalism”.
Originalists think that the 14th means whatever the Reconstructionists who wrote it thought it meant. And it’s abundantly clear that Reconstructionists did not intend to prosecute former Confederates but still wanted to keep them out of office.
If the SCOTUS majority ignores what Reconstructionists thought in order to help Trump, it would be like the Pope ignoring Catholic doctrine in order to help Trump. They can do it, but they know their legal theory will never be taken seriously again. And that’s a big deal, since Justices are ultimately remembered for their legal theories.
True, but politics tends to put an asterisk by justices’ rulings. In Bush v. Gore, the Ds were arguing states rights, while the Rs were arguing federal supremacy. Completely against their usual positions, but everyone knows why.
Bush v Gore came down to two things, and it’s hard to find real fault with either.
The first is an Equal Protection claim - Gore wanted to recount certain parts of the state under different rules than the rest of the state was counted under. The argument was that doing so violated equal protection under the law and the entire state should be counted under one standard.
The other is that election deadlines are legal and enforceable. SCOTUS was actually really quick in handling Bush v Gore (Gore started his final recount on a Friday, injunction in less than 24 hours, oral arguments Monday, decision on Tuesday morning) and they still only released their opinion 2 hours before the deadline for election results to be certified.
Ironically, based on studies done by others after the election Gore still would have lost had his last recount been allowed to go through as planned (presuming he didn’t demand further recounts after that), but he might potentially have narrowly won if the entire state were recounted under the standard he wanted to use, but that wasn’t a recount he ever called for and it wasn’t a recount that could realistically have been completed under the deadline.
You throw out election deadlines, and we’d have Trump still to this day trying to legally challenge Biden’s election. You’ll notice he stopped doing that in early December and switched to just being a bloviating blowhard trying to rile up his followers over it for that sweet, sweet scam money and maybe an off chance at a successful overthrow of the government that he ideally could plausibly deny if it went wrong.
States rights is associated with Republican elected politicians, but not so much the SCOTUS majority. There are many examples of Roberts et al ruling against states rights, in fact they recently sided against Texas in the state v federal border dispute. And they ruled against the independent state legislature theory last year.
Originalism, on the other hand, is near and dear to their hearts. They have basically never embraced another doctrine.
Fair point, but if the vote goes 6-3 and the Rs ignore originalism entirely in their opinion, I don’t think anyone would expect their adherence to the doctrine to change in the next case or any cases afterward. It’ll go down in the history books as a politically-motivated outlier case, not dissimilar to Bush v. Gore.
Sure, they would still adhere to originalism. But they would knowingly create a precedent where it doesn’t apply. Future Justices are supposed to respect precedent, so this means handing future liberal courts a useful new tool to dismantle their contribution to legal theory.
Is saving Trump from himself worth ending their own legacy?
I’d really like to think that these justices still care about things like legacy and consistency, but I’m not sure that’s the case. I suppose we’ll find out soon enough.
That, or they’ll punt the ruling on some bullshit like waiting for Congress to act. That seems most likely at this point.