If Trump is Disqualified, Only Congress Can Say So
So rules SCOTUS.
This is me, rolling up to you now and saying what up. Welcome to the Friday night Jackal. This one is coming to you late because I wanted to do a quick breakdown of the SCOTUS decision in Trump v. Anderson, and also touch on Dark Brandon’s speech on last night. Let it rip.
Joe Biden did a pretty good job for someone who has dementia.
So, Joe Biden gave a big speechy speech last night, and the general pundit consensus is that he killed it. CNN did an instant poll of people before and after the speech (not the best evidence but it’s all we’ve got) and it found big shifts in positive attitudes towards Biden after the speech from before.
What generally tends to happens with the State of the Union: People initially feel warm and fuzzy, but also skeptical. Then, the bigger shifts happen (if they happen at all) in the weeks that follow.
So, all in all, good news for Biden. Even the reactions from conservatives were positive:
But this one really stood out to me, both because it is hilarious and also because it is true:
I have been watching the same movie about Biden play on repeat for five years. During the 2020 Election, Joe Biden was apparently so feeble that he was not going to be able to make his acceptance speech at the Democratic National Convention. Does anyone remember this?
The Trump campaign even secured the pricey and highly influential ad space of YouTube's top banner on Tuesday to show an ad painting Biden as senile, juxtaposing old clips of the vice president with others of him stuttering or losing his train of thought on the 2020 campaign trail.
President Donald Trump's adult sons, Eric and Donald Jr., appeared on Fox News all week claiming that Biden couldn't even string a sentence together.
Then, Biden gave the speech and even Fox News said it was great:
Dana Perino, a Fox News anchor who served as George W. Bush's press secretary, after the speech said Biden "just hit a home run in the bottom of the ninth."
Analysts on the network also gave glowing reviews.
Karl Rove, the architect of Bush's two election victories, said that the speech was "very good" and that he'd be worried if he were a GOP strategist working on this year's presidential campaign.
It is wild to see the same thing play out in 2024. In 2020, Trump and his team were so sure Biden was a reanimated corpse that they said he would not debate Trump, and would try to back out.
Then, Biden’s speech happened in August and the narrative shifted. It was then, “Biden was on drugs, so I want a drug test done before the debate.” After Biden debated Trump (and did not die on stage), Trump backed out of the second debate. I did a Twitter thread on this, but I’ll highlight this tweet to sum it up:
I have said many times that Trump often has better political instincts than the GOP. Case in point: After Alabama’s recent decision on IVF dropped, Trump was the first one out of the gate to say Republicans should support IVF. He knew that the politics of it were bad for Republicans, and you can see how traditional GOP instincts on the issue are bad politically after watching Mike Johnson talk about it for two freaking minutes.
But being able to spot an obvious issue like that does not make Trump a political savant. And on this particular issue (Biden’s “dementia”), he gets easily embarrassed by Biden’s rope-a-dope technique over and over again (Trump also cannot let things go for mental reasons, so that plays a part too). The GOP has repeatedly fallen into the same trap, which is that they set the bar for Biden super low, he clears it, and he gets praised by the media and declares victory.
Do you know who has never brought up Biden’s age once? The GOP’s most ruthless leader, who delivered two Supreme Court seats and corporate tax cuts that Republicans had been dreaming about for decades: Mitch McConnell. He is smart enough to know that it is a dumb play, and one that Trump will probably stumble into again before the election in November.
Are you seriously going to talk about the SCOTUS decision instead of Katie Britt?
I have fun stuff about Senator Britt below, but the Jackal’s wheelhouse is law, so you are eating your vegetables.
I’ll first link to the decision itself, and then to a few responses that I think are worth reading. The general take seems to be that even if the Court got to the right outcome, the decision itself is a mess.
Quinta Jurecic has a great piece here on the Court’s obvious hesitancy.
David French thinks the Court got it wrong.
Ilya Somin is also not impressed.
Luppe B. Lupin asks, “Where are the dissents?”
Those are all great reads, but mine is going to be the best. Why? I’m going to use pictures. Lots of pictures.
9-0 is not really a close decision.
I want to address something pretty early about the makeup of the decision. I saw a few different headlines that I think were wrong, like this one:
“Disaster” is its own descriptor, but I don’t think it’s fair to say it was a 5-4 decision. All nine justices agreed with the reasoning that Colorado - as a State - did not have the authority to remove a Federal candidate from its ballot. It’s just that Justice Amy Coney Barrett thought the Court went slightly beyond what they had to do, and the liberal justices all thought the Court went way beyond what they had to do.
There was also a big to-do (lots of to-dos) about the case originally having three dissents from the liberals, based on the metadata left in the PDF by mistake (big whoops). I’ll say this about that:
A clerk for the justice usually drafts a brief, and they will label it as a dissent or a concurrence. It’s possible a clerk did it initially, and the author (Justice Sonia Sotomayor, for instance) changed it later because it was obviously wrong.
It is also possible it was originally drafted as a dissent to something in the majority opinion that got removed afterwards. That probably happens all the time.
It is also possible that there was some horse-trading going on with Trump’s immunity case currently scheduled for argument on April 25th, and the dissents were framed as such early on, before the trading of cute little horsies.
Any of those are possible, but I’ll just say this: It does not make a ton of sense to me that the liberals were dissenting to the majority opinion, because a dissent expresses disagreement with the outcome of the case. They agreed with the outcome, but just had differences with the route taken there.
OK, so the majority opinion is good?
No, it sucks ass. It is incredibly un-persuasive, makes zero coherent logical points, and does not address any of the counterarguments. But it got to its conclusion, which is really all that matters.
I know I said repeatedly here that I did not think SCOTUS would ever disqualify Trump, mostly/kinda/sorta for political reasons. But the argument about his disqualification is incredibly hard to rebut. I’ll give one example from the decision that will demonstrate what a mess it is:
Moreover, permitting state enforcement of Section 3 against federal officeholders and candidates would raise serious questions about the scope of that power. Section 5 limits congressional legislation enforcing Section 3, because Section 5 is strictly “remedial.” City of Boerne, 521 U. S., at 520. To comply with that limitation, Congress “must tailor its legislative scheme to remedying or preventing” the specific conduct the relevant provision prohibits. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639 (1999). Section 3, unlike other provisions of the Fourteenth Amendment, proscribes conduct of individuals. It bars persons from holding office after taking a qualifying oath and then engaging in insurrection or rebellion—nothing more. Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruence and proportionality” between preventing or remedying that conduct “and the means adopted to that end.” City of Boerne, 521 U. S., at 520. Neither we nor the respondents are aware of any other legislation by Congress to enforce Section 3.
This is extremely sloppy, and then molded and blended with gobbedly-gook. SCOTUS essentially says that Congress must pass legislation to enforce Section 3. To give you a Schoolhouse Rock™ refresher: Legislation gets passed by going through both the House and the Senate, and is then signed by the President.
This would leave an awful lot of insurrectionists in a weird position. The most recent one is Victor Berger (not all that recent), who ran for Congress and won his seat, but Congress refused to seat him under Section 3 of the 14th Amendment, in 1919.
They didn’t pass any legislation, and it wasn’t even “Congress;” it was just the House. So, is Berger’s denial of his seat now overturned? Does the House of Representatives owe Berger an apology?
It’s hard to know, mostly because Berger is dead. But you’d think that if SCOTUS were saying that the House mis-applied Section 3 to Berger (or did so illegally), they’d…you know...say it. SCOTUS instead says they are, “…unaware of any legislation by Congress to enforce Section 3.” Well, that shouldn’t be surprising because for a significant part of their history, Congress obviously did not think legislation was necessary to enforce Section 3.
Yikes.
It’s a bad, poorly written decision, I would bet money that the justices know it. But a line from the “dissent” really stuck out to me:
“…to insulate this Court and petitioner from future controversy.” I think that was ultimately the goal here; Chief Justice John Roberts did not want to see this issue come back to him in January 2025, or December 2024. And despite his efforts, I don’t think it’s over: Democratic members of the House have already started talking about drafting legislation to bar Trump from office, and the House gets sworn in on January 3, 2025, 17 days before (a potential) President Trump follows suit.
A thing that is entirely still possible with this (messy) decision: Donald Trump is barred from serving as President next year. It is just Congress that will have to make the call.
SCOTUS should have resolved it fully, and either said Section 3 did not apply to Trump because he did not engage in insurrection, or that he is actually barred forever. My guess: There may have been five votes to say Colorado did not have the authority to take Trump off the ballot, but there weren’t five votes to say he is not an insurrectionist, and none of the justices want to say that publicly if they can avoid it.
Should-Reads/Katie Britt Memes:
Alabama Senator Katie Britt gave the GOP response to the State of the Union and hooooooooo man.
I have seen a lot of “responses” to the State of the Union in my time, and I have never seen one get mocked so much. I mean, here was MemeOrandum on Friday night:
24 hours later and it was still the story. And yes, I have the memes:
I was actually glad the Internet was invented last night, so thank you Katie Britt.
An actual should-read: The U.S. had a program to find and collect downed alien spacecraft. Spoiler: It was not serious because we have never found any alien spacecraft.
I am leaving you with a picture of Vail, where I will be tomorrow, and the primary reason why you are getting a late night Jackal. Enjoy your weekend.
