Well, That Went Well

My bet: Between 7-2 and 9-0 for the very specific proposition that states can’t unilaterally disqualify candidates running for President on the ground that they engaged in insurrection.

That’s just a prediction based on the oral argument—not what I think the Court *ought* to do.

— Steve Vladeck (@steve_vladeck) February 8, 2024

I’m going to start by repeating myself:

The argument for consequences was the primary argument (per the MSNBC panel). So, no Mike Luttig or George Conway on the bench. Too much concern with who gets to be on the ballot for President, especially with third-party candidates standing in the shadows shouting “HELLO!”, while nobody notices. 

I will also note the discussion of the sedition clause (which predates the 14th), which denies one convicted under it from holding office thereafter. This was presented as superseding, or at least making moot, the 14th. So basically the argument was on track to declare cl. 3 an empty set of words in the Constitution. 

Which is the worst outcome imaginable. “We don’t like the consequences of following the Constitution, so we won’t. Let’s just all pretend the Constitution doesn’t say what it says.” 

If that ain’t a “constitutional crisis,” I don’t know what is.

I fsil to understand how cl. 3 makes a special exception to the general rule that states can disqualify candidates for Art. II reasons (age; citizenship), or control ballot access, but cl. 3 is off limits and basically erased from the Constitution by judicial fiat.

The really unmentioned argument is that major party candidates have special privileges not allowed any other candidates, and Presidential candidates especially stand apart from all others. It’s really not even a leap, but a “mind the gap” step, to Elie Mystal’s point:

Jackson is worried about the lack of uniformity, with different states saying different candidates are ineligible. She doesn't think the framers would have designed such a thing.

She's gone, folks. I suppose... Sotomayor could still be holding out but... this is done.

— Elie Mystal (@ElieNYC) February 8, 2024

THAT IS PRECISELY THE SYSTEM WE HAVE NOW!  THE ONLY UNIFORMITY IS DUE TO THE PARTIES CONTROLLING THE LEGISLATURES OF ALL 50 STATES! That is a consequence of American history, not the Constitution!! Nor is altering that in any way effectively unconstitutional.

I’ll retire to Bedlam.

The case is submitted. I think it's 9-0 Trump on the ballot. I'm going to scream into the void and then write.

Thank you all for joining me on yet another journey of "How Democracies Die" that took an unexpected detour into "Why Democrats Fail"

— Elie Mystal (@ElieNYC) February 8, 2024

(Trump on the ballot means less to me than the Court taking an eraser to the Constitution. But yeah, “screaming into the void” feels about right, right now.)