0:00:00.0 Speaker 1: We'll hear argument this morning in case 23-719, Trump v. Anderson.

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0:00:12.0 Rhiannon: Hey everyone. It is not Leon from Prologue Projects. This is Rhiannon. On this emergency episode of 5-4, we're talking about Trump v. Anderson. This is the infamous Colorado case that your MSNBC Mom has been holding onto for dear life, the case that could have kept Trump off the ballot in several states. Spoiler alert, he's still gonna be on the ballot. We're joined today by Jay Willis from ballsandstrikes.org to talk about the 9-0 Holding that Colorado or any other state cannot prevent Trump from running for federal office. And wait, 9-0 you say? You mean this was a unanimous decision, and even the liberal justices agreed that a state can't keep an insurrectionist off the ballot? That's right, folks. And a big part of our beef today is with Sotomayor, Kagan and Jackson for this monumental and historical whiff. This is 5-4, a podcast about how much the Supreme Court sucks.

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0:01:14.6 Michael: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have abandoned our civil liberties, like Peter abandoning the podcast this week.

0:01:24.2 Rhiannon: Got his ass. Got him.

0:01:25.2 Michael: That's right.

0:01:26.3 Rhiannon: I've been waiting for this for over four years.

0:01:30.6 Michael: That's right. [laughter] I'm Michael and I'm here with Rhiannon.

0:01:33.4 Rhiannon: Hello everybody.

0:01:34.0 Michael: And our special guest host, Jay Willis.

0:01:37.5 Jay Willis: Hey gang.

0:01:41.4 Michael: Jay is the Editor-in-Chief of Balls and Strikes.

0:01:43.0 Rhiannon: You've heard of him. Frequent guests on the pod.

0:01:47.7 Michael: Do you want to tell us about Balls and Strikes, Jay?

0:01:47.8 Jay Willis: It's a great website where we talk about the Supreme Court, which for the most part means we talk about bad things. However, I sort of trust that your listeners are familiar with this dynamic.

0:02:00.1 Michael: Yes. [laughter]

0:02:03.2 Jay Willis: And it's a privilege to be on this week to be replacement. Peter, of course, in his honor, I will be putting on my thickest New Jersey accent and telling you guys an anecdote about what's going on outside my apartment in Queens.

[laughter]

0:02:18.7 Michael: Yes. Yes. Yes.

0:02:19.2 Rhiannon: He's gonna be extra mad because he's from Philly. [laughter]

0:02:24.8 Michael: Perfect.

0:02:25.6 Jay Willis: It's all the same as far as I understand it.

0:02:28.0 Michael: Yeah.

0:02:28.1 Rhiannon: Yeah. That's right.

0:02:31.3 Michael: So Peter, of course, didn't actually abandon the podcast. He's in South America scouting potential non extradition countries in case Donald Trump should retake power. You are hearing from us today outside our regular recording schedule because we had to do an emergency episode about Trump v. Anderson. The case about whether Colorado can bar Donald Trump from appearing on ballots for president in the state, given that he tried to overthrow the United States government just a few years ago.

0:03:06.6 Jay Willis: Details.

0:03:08.1 Michael: A slight little coup. Their reasoning was, hey, this is actually in the Constitution. I don't know if you guys noticed, but specifically Section 3 of the 14th Amendment, which reads in pertinent part, "No person shall hold any office, civil or military, under the United States, or under any state, who having previously taken an oath to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same. But Congress may, by a vote of two thirds of each house, remove such a disability." And just a few days ago, the Supreme Court held, in a 9-0 ruling, that actually, nevermind about all that. Donald Trump's gotta be on the ballot. We gotta do this all again.

0:04:00.2 Jay Willis: Old Donny wriggled his way out of a jam.

[laughter]

0:04:00.8 Rhiannon: Yeah, right. Yep. People in Colorado were like, "Hey, wait a minute. We're reading the Constitution here. There is this Section 3, the 14th Amendment actually seems directly fucking on point."

0:04:12.4 Michael: What do you know?

0:04:13.6 Rhiannon: And the Supreme Court said, "No, no, no. You fucking idiots, reading. You think literacy is what gets us here. No, no, no, no, no. Y'all wrong." [laughter]

0:04:23.3 Michael: So changing it up a little bit, since Peter's not here, we're actually gonna have Jay do the background today. So Jay, maybe you can take us through how we got to the Supreme Court in the first place.

0:04:35.8 Jay Willis: That's right. I get to be replacement Rhiannon for this section too, which means Rachel may or may not have to bleep out.

[laughter]

0:04:47.3 Jay Willis: I look forward to sexists sending us emails complaining about your laugh.

0:04:50.1 Rhiannon: Right. Yeah.

[laughter]

0:04:55.9 Jay Willis: Oh man. Okay. So, the original proceeding is in Colorado State Court. The named plaintiff in this case is Norma Anderson. She's a 91-year-old former Colorado State lawmaker. She was the first woman to serve as majority leader in both the State House and the Senate. And she was a Republican. She left the party in 2021 over its deification of Donald Trump. Sort of a better late than never situation, I guess. And this lawsuit is the work of a group called Citizens for Responsibility and Ethics in Washington or CREW, whom you may remember from emoluments clause litigation during the Trump presidency that also failed to end Donald Trump's political career once and for all.

0:05:47.3 Jay Willis: So the ask in this case was to keep Trump off the Republican primary ballot on the grounds that, hey, he's a Section 3 insurrectionist, who it's constitutionally ineligible to hold office. Now the state court in Colorado, they held a trial. They heard from witnesses, several Capitol police officers who were at the Capitol on January 6th, who described being beaten, being pepper sprayed, Trump supporters trying to stab them with a sharpened flagpole. They also heard testimony from California Congressman Eric Swalwell, who talked about being a lawmaker on the Capitol on that day, and sort of the surreal experience of trying to figure out what was going on by following along with Trump's tweets while hiding in locked offices, locked storage closets in the Capitol building. And the judge in this case decided that, what do you know, Trump did engage in insurrection.

0:06:43.0 Jay Willis: But it was sort of a only half a victory because the judge also decided that Trump is not an officer of the United States within the meaning of Section 3. If the idea that the President of the United States is not an officer of the United States strikes you as, I don't know, maybe a little strained, maybe a little confusing, I get it. But just stay with me for now. Because the Colorado Supreme Court decided to come in and be super cool. They overruled the lower court on the eligibility question and they said that no, he can't be on the ballot. Now this was a four to three opinion. The Colorado Supreme Court is all Democrats, seven Democrats. So this is clearly fraught and complicated. And the justices on the court really tried to reckon with that. But in any case, the Colorado Supreme Court stayed its ruling until the US Supreme Court could weigh in.

0:07:39.9 Jay Willis: And I'll note quickly here that there were similar efforts in Maine and Illinois. So in Maine, the Secretary of State concluded that Trump couldn't be on the primary ballot as an insurrectionist. And then in Illinois, a state court judge relied on the Colorado Supreme Court's decision to reach the same conclusion. Thanks to the opinion that I think Michael is going to yell about now, those decisions are tossed as well. Trump is back on the ballot there and everywhere else.

0:08:09.3 Rhiannon: Yeah. Important to point out, I think that each of these cases was only about those state's primary ballots. So the Colorado decision is only the Supreme Court of Colorado saying that Donald Trump cannot be on the primary ballot, cannot be on the Republican primary ballot in the state of Colorado. Maine, that decision would only have applied to Maine. Same thing for Illinois. So these are state courts deciding state election proceedings. Right?

0:08:36.0 Jay Willis: That's right.

0:08:36.3 Michael: Right. So, turning to the US Supreme Court decision, as I said at the top, this was 9-0 in disposition, which means all nine justices agreed that Colorado can't do this. But in terms of reasoning, it was actually 5-4, which is interesting. And the majority opinion, we'll call it, was a per curiam opinion, which is always a weird thing when you don't have all the votes, which means we don't know who the author was, though there's good reason to believe that Roberts was the primary author on this.

0:09:11.8 Jay Willis: 100%

0:09:12.9 Rhiannon: Oh, and just to explain per curiam, that means that we don't know the author of the opinion. It's supposed to be the voice of the court, that the court is handing down this opinion without naming which justices join necessarily. But in this decision, we have two concurrences. So we know who differentiates a little bit in terms of the reasoning. All nine justices agree to the holding in this opinion, but two concurrences, one is by Amy Coney Barrett, and the other one is by the liberal justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. So we know there is some difference of opinion, even though the "majority" is per curiam.

0:09:57.2 Michael: So what do they say about this? What do they do? Well, first of all, they avoid the question entirely of whether or not Donald Trump engaged in insurrection and say, well, look, it's just, it's not for Colorado to decide, or any individual state. They say, look, the 14th Amendment, a point I make on this podcast all the time, restricts state autonomy and expands federal power. And Section 3 does as well. So they say, it can't be the case that it also empowers the states to kick someone off the ballot. That's crazy talk. [laughter]

0:10:32.8 Rhiannon: Right. Now they're big reconstruction amendment guys, right?

0:10:37.6 Michael: Yeah. All of a sudden it's second founded.

0:10:40.8 Rhiannon: Yeah, going back and saying, "Oh, wait a second. No, no, no, no. The 14th Amendment, the problem back then was that states were taking too much power and the federal government needed to humble the states, restrict state power." That's the point of the reconstruction amendments. You don't really hear this from the Supreme Court's conservatives, right?

0:11:00.0 Michael: No. Not very often.

0:11:02.7 Rhiannon: But that's what they're saying here. And they're saying that Colorado taking Trump off the ballot, well, that couldn't be what the 14th Amendment empowers Colorado to do.

0:11:08.9 Michael: Right. They voice some concerns about different states with different procedures and standards. So to saying, well, like, look, Colorado had this trial, but other states might not. Other states might not have any procedures. Other states might say, instead of clear and convincing evidence, you need to prove beyond a reasonable doubt. And therefore you might get conflicting answers and a patchwork approach, which can't be how we decide presidential elections.

0:11:36.8 Jay Willis: Oh no.

[laughter]

0:11:37.6 Michael: This would be a shock to anyone who's engaged with a presidential election in any manner in the last like 40 years where, for one thing, the electoral college decides it. So it's just a handful of states, a concern they raise. For another thing, is a patchwork of approaches. Anybody who's been interested in voting, third party will know that third parties regularly are not on the ballot in all 50 states. Just for an example, no labels, sort of a conservative ratfuck the Democrats group that tries to peel off conservative Dems. They don't even have a candidate, but they have a ballot line in 11 states. Eventually they'll find a candidate. I think Kyrsten Sinema said she's not running for Senate, so keep an eye out for Kyrsten Sinema on the no labels line coming to you this election. So I think it's really more smuggling in a sort of a soft due process argument. Like, oh, are we really sure this is like sufficient process for disqualifying someone from the ballot? They mentioned it's a very extreme remedy. I actually don't think it's an extreme remedy. If a court comes to the conclusion that someone engaged in insurrection and the only consequence imposed on them is that they can't run for office, that is pretty much the opposite end of an extreme remedy. Historically, the remedy for that is a public hanging, like through all of civilization.

0:13:09.3 Jay Willis: Yeah. There are people who are already serving prison sentences for January 6th. You'll note that Donald Trump is not among them.

0:13:15.8 Rhiannon: Right.

0:13:16.1 Michael: Right. But they don't really actually want to explain why the Colorado proceedings were deficient because they have all the hallmarks of due process. Like Jay said, there was a trial, there were witnesses, there was evidence. Trump got to cross-examine and present arguments. So they do say states can enforce Section 3 of the 14th Amendment for state office holders, which leads to the interesting conclusion that some people might not be qualified to run for literally dog catcher for engaging in an insurrection, but nonetheless could hold federal office for the same conduct. And finally, the point that the liberals get upset about, they say, look, Section 5 of the 14th Amendment says Congress can enforce this amendment by legislation, that in fact Congress must pass legislation in order to create procedures to determine who is and is not an insurrectionist.

0:14:16.9 Michael: Now that's kind of weird because if you remember how I read the amendment at the beginning, it said Congress may, by two thirds vote, remove such a disability, the inability to hold office. The amendment says it requires a two thirds vote for Congress to remove this qualification. And now all you need is to filibuster legislation. So all you need is 40 votes to remove the disqualification because you just prevent Congress from passing the enacting legislation, and nobody can be denied office for engaging in insurrection. And that's pretty much it. Short and sweet. Five vote per curiam opinion saying Donald Trump is a special bully who does not have to be disqualified for maybe possibly doing a light insurrection.

0:15:18.7 Michael: And I guess one final thing that's worth noting about the majority opinion, something ominous is they say the disruption would be all the more acute and could nullify the votes of millions and change the election results if Section 3 enforcement were attempted after the nation has voted. And while this is said in the context of why states cannot enforce Section 3, you'll note that that sentence is not just about states, and the concerns are not limited to state enforcement of Section 3, and seems very particularly aimed at the possibility that if Donald Trump were to win in November, but somehow Democrats retake Congress, that they might consider refusing to certify his electoral votes because he's insurrectionist and suggesting that they would not be on board with that. If Donald Trump then took that to court, they would be ready to come out in his favor. It's not 100% clear, but it feels like a warning shot.

0:16:37.5 Rhiannon: So there's one conservative, Justice Amy Coney Barrett who writes separately. She has a separate opinion. It's only two paragraphs long. And again, it is a concurrence. She's not dissenting. It's a concurrence because she does agree with the result that Donald Trump cannot be disqualified from being on the ballot from running for president in Colorado or anywhere else, or anywhere else based on the 14th Amendments Section 3. Now, she writes separately to say that she does think that the majority, the five justices, went too far in their reasoning, in the last part that Michael just discussed. She thinks that it isn't necessary. The court didn't need to decide, did not need to go so far as to say that Congress has to proactively pass legislation in order for a presidential candidate to be disqualified from the ballot under Section 3 of the 14th Amendment. So she says that it's again, very short and sweet. She says, literally, "It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced." Alright, that's her first paragraph, basically. Second paragraph, Amy Coney Barrett said, "I'm the teacher, I'm the mommy and I don't like how the liberals wrote separately here."

0:18:01.9 Michael: Yeah, we got some tone policing going on here.

0:18:05.6 Jay Willis: Absolutely.

0:18:06.8 Rhiannon: So straight up tone policing. Again, it's a paragraph. I'm just gonna read it to you. "The majority's choice of a different path leaves the remaining justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The court has settled a politically charged issue in the volatile season of a presidential election. Particularly in this circumstance, writings on the court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity. All nine justices agree on the outcome of this case. That is the message Americans should take home."

0:18:46.1 Jay Willis: Yeah.

0:18:47.6 Rhiannon: Okay. Amy, I don't get this at all. Like it's teacher's pet. Like John Roberts wrote this per curiam opinion probably, and Amy Coney Barrett is like offended at the way the liberals wrote separately a decision that I'm about to talk about, and she's just scolding them. She's just saying like, you all did it in a way that I don't like. You all were too sassy.

0:19:13.7 Michael: Too strident.

0:19:14.4 Rhiannon: Right. Too strident. And our tone up here at the Supreme Court, our tone up here in the ivory tower should be turning the temperature down on national debate, not turning it up.

0:19:27.0 Michael: Before we get to the Libs, I want to take issue with something she says.

0:19:31.4 Jay Willis: You? No way.

0:19:33.2 Michael: She says the court has settled a politically charged issue in a volatile season, but they haven't really settled it.

0:19:41.2 Jay Willis: Absolutely not.

0:19:41.9 Michael: They don't say whether or not he engaged in insurrection, and in fact say, fuck that, we don't even get to decide whether he get engaged in insurrection. We don't decide whether he's barred. That's Congress's job to prescribe procedures for maybe courts to use in order to decide at some later date. It is a total abdication. It is saying, we don't decide, and in fact, nobody decides because everybody knows fucking Congress isn't going to do shit here. So what are we talking about? This was a total punt.

0:20:13.0 Jay Willis: It's also pretty funny. Like, yeah, this being a punt to a Congress that everyone knows is never going to pass the sort of like narrowly tailored and specific bill necessary to enforce the disqualification clause. But there's like a very conspicuous sentence in the, again, I'll call it the majority opinion, that's like, oh, well, just to be clear, like this would still be subject to judicial review.

0:20:38.6 Michael: Yes.

0:20:39.7 Jay Willis: Like, we are going to put the responsibility onto Congress that we know is not going to fulfill the responsibility. But somehow, if Congress were to accomplish this task, we just want to make clear that we might still find a reason to stuff that law in the garbage.

0:20:53.9 Rhiannon: Right, right. We're still going to be reviewing it. We're still the final check on it. Yeah, exactly.

0:20:57.1 Jay Willis: Yes.

0:20:57.2 Michael: Yeah.

0:20:57.6 Rhiannon: Let's go ahead and move to the liberals concurrence. Again, this is a concurrence because even the liberals agree with the result. Donald Trump cannot be disqualified from running for president in Colorado based on Section 3 of the 14th Amendment. They agree on that result, but they disagree with the reasoning. They actually disagree in the same way that Amy Coney Barrett disagrees.

0:21:24.3 Michael: Yes.

0:21:25.5 Rhiannon: They disagree that the majority opinion, as we're calling it, goes so far as to add on or supplement their holding that Donald Trump can't be disqualified from running. They supplement that holding by adding on that, additionally, well, the only way he could be disqualified is if Congress, federal Congress, passes a law that explains how a president could be found to be an insurrectionist, could be disqualified from running for office. And this would be national legislation, right? Now, what you get from the Libs, substantively, is not much more than that. They do explain a little bit more the reasoning, their disagreement on that point. They explain it more than Amy Coney Barrett did in her one sentence on the topic, right? But what you get additionally is the tiniest bit of what some analysts are calling like, ooh, Yas Queen snark, and that's what Amy Coney Barrett is taking issue with, right?

0:22:34.3 Rhiannon: So I'll give you an example. The liberals in concurrence say, "In this case, the court must decide whether Colorado may keep a presidential candidate off the ballot on the ground that he is an oath-breaking insurrectionist and thus disqualified from holding federal office under Section 3 of the 14th Amendment." You see a little bit of this throughout their concurrence, but that's kind of it.

0:22:58.7 Michael: They call him an oath-breaking insurrectionist several times.

0:23:03.5 Rhiannon: They call him an oath-breaking insurrectionist. That's what Amy Coney Barrett is taking issue with, saying, y'all are turning up the temperature. We should be turning it down, right? But they're not wrong. That is what is happening.

0:23:14.0 Michael: The factual finding of the district court.

0:23:16.6 Rhiannon: Right. They have to decide whether a court finding that Donald Trump is an oath-breaking insurrectionist allows Colorado to take him off the ballot, right? So it's not like laying bare to their far left politics or anything. They're just saying it.

0:23:35.6 Jay Willis: Right. This just made me realize, is there anything in here? I'm running a quick Control+F. I don't think there's anything in the per curiam opinion here that overrules the Colorado Supreme Court's conclusion that he committed insurrection, engaged in insurrection.

0:23:53.9 Michael: No. The entire thing is just, this isn't the right way to do it. It's backseat driving efforts.

0:23:57.8 Jay Willis: Sounds like precedent stays on the books.

0:24:00.2 Michael: Exactly. Donald Trump is fully disqualified from holding office in Colorado, for example, because, according to Colorado courts, he engaged in insurrection. And so under Section 3 of the 14th Amendment, he is barred from holding office in Colorado. And this is because the Supreme Court didn't actually overrule the reasoning of the Colorado courts. They just said the Colorado courts don't have this power over federal elections.

0:24:27.8 Rhiannon: Just their own state elections.

0:24:28.9 Jay Willis: I do think it would be cool if he moved to Aspen and opened a weed shop and was like, guess who's running for Ag commissioner? But that dream is dead now.

0:24:35.8 Rhiannon: Right.

0:24:40.9 Michael: Yeah.

0:24:41.4 Rhiannon: Let's talk about what the fuck is wrong with the liberals, shall we?

0:24:43.2 Michael: Yes.

0:24:44.0 Rhiannon: Because this concurrence should be a dissent. I think all three of us agree, right? Just fucking dissent. Just dissent. Just make it 6-3. Amy Coney Barrett obviously disagreed as well. Maybe it's a 5-4 decision. I don't know, but it should at least have been 6-3. And something that's really interesting, Mark Joseph Stern over at Slate discovered something interesting, which is that in the PDF, the uploaded documents from the Supreme Court of this opinion, of these decisions, the metadata actually shows that this liberal concurrence started, was labeled as a dissent. It seems that Sotomayor was originally writing separately in dissent. And then, the metadata shows that it got switched and turned into a concurrence, in which the two other liberals joined her.

0:25:42.8 Jay Willis: And it would have been still a concurrence in the judgment, in the court's bottom line conclusion about Colorado's inability to kick Trump off the ballot unilaterally. But the dissent, the capital D dissent would have been about the court's overreach, the court's imposition of conditions for enforcing the disqualification clause that everyone knows are never actually going to happen.

0:26:10.0 Rhiannon: Right. So guys, what the fuck? I think we're most mad at the Libs, right?

0:26:14.6 Michael: Right.

0:26:14.7 Rhiannon: I mean, it's expected that the fucking clown ass conservative justices are coming down this way. But why?

0:26:22.5 Jay Willis: I mean, it was strange to read it when the opinion came out, because there are a couple of barbs, I guess, for lack of a better term in that opinion, that are pretty rude and pretty pointed. I think most notably, the three liberals refer to the majority opinion as insulating "this court and petitioner from future controversy." And that's about as close as they get to saying what's plainly going on here, which is the justices in the majority are bending over backwards to protect their guy, to protect the presumptive Republican Party presidential nominee. It also has like some style quirks that are characteristic, I think, of a dissenting opinion. I don't want to get like too deep into tea leaf reading palace intrigue, but the opinion refers to the majority opinion written by "five justices", which like is not sort of the thing that you would expect to see in a ostensibly per curiam for the court opinion, which really sort of belies the notion that there's agreement here in any non-technical sense of the word.

0:27:31.9 Jay Willis: So, Mark's discovery that maybe this was going to be a dissent and for whatever reasons, which we can speculate about, for whatever reason, they decided to change the label. It was like, oh, now all of this like polite venom that I'm reading in this opinion, oh, this makes more sense. Like this was supposed to be something else and should have been something else and isn't.

0:27:51.0 Michael: Right. And to that point, I think, and what I said earlier about assuming that the per curiam was majorly written by Roberts, this liberal dissent, we'll call it concurrent/dissent, opens by quoting John Roberts. And it quotes him saying, "If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more." A very Robertsy thing to say. This is what he said in Dobbs, basically taking to task his conservative colleagues for overturning Roe v. Wade when he felt like they didn't need to. And so it's pretty clear that this is Sotomayor saying, look at you, asshole. And here you are doing the same. You're doing the shit that you don't need to because it's your conservative pet coughs. Maybe you don't care about Roe v. Wade, but you do very much care about the electoral politics of the Republican Party. It would be a lot more powerful as the first line in something that read dissenting rather than concurring in judgment.

0:29:01.5 Rhiannon: Definitely.

0:29:02.0 Michael: It would be a lot more meaningful coming down as the first line in a 6-3 opinion rather than a 9-0 opinion. And I just, guys, I don't understand what the Libs are doing here. I don't get it. What the fuck? What the fuck are they doing?

0:29:22.4 Rhiannon: But like, what did they get out of it? That's my question.

0:29:25.0 Jay Willis: It better have been awesome. There better be a commitment on the table for Clarence Thomas and Sam Alito to retire on St. Patrick's Day or something.

0:29:35.6 Rhiannon: Right. Right.

0:29:36.7 Michael: I just want to go back to the snark that Rhiannon quoted. They say, "The court must decide whether Colorado may keep a presidential candidate off the ballot on the ground that he's an oath-breaking insurrectionist and thus disqualifying from holding federal office." How is your answer, "they cannot"? If you believe that, if you believe that he's an oath-breaking insurrectionist, and that he should not be on the ballot, how can your answer be that, yeah, but Colorado isn't the right way to do this. Bring it in state court. What the fuck is the point of you?

0:30:11.8 Rhiannon: It's very weird that it's like, yeah, well, Colorado didn't do it the right way. But we also don't agree with what the majority said is the right way to do it, that through federal legislation, right? So it's like, okay, a state can't do it on their own. We don't agree that federal legislation has to be passed. We do think he is an oath-breaking insurrectionist who probably shouldn't be on the ballot. It's like, what are you doing then, liberals? Like, what are you communicating about the law and about what the Constitution means then?

0:30:42.0 Michael: Right.

0:30:42.1 Jay Willis: Call that a buried lead.

0:30:43.7 Michael: Grow a fucking backbone. Like, I don't agree with the majority's reading of the 14th Amendment. And as I said, it like turns the provision on its head by putting the onus on Congress to do something in order to impose the disability rather than putting on the onus on Congress to do something to remove the disability.

0:31:01.7 Rhiannon: Right. Which it clearly states. Yeah.

0:31:01.8 Michael: Right. But at least they're saying, this is the way to do it. Like, the Libs don't even do that. Like, they offer one example, a sort of chilling example, to be frank, of like a non-legislative way they could imagine this playing out, which is someone raising the 14th Amendment as a defense because they're being prosecuted by an insurrectionist. So they are seeing through to Trump being on the ballot, winning the election, appointing another insurrectionist as an attorney general, and prosecuting people, and then people raising that as a defense, I guess. That's great. I'm glad you are trying to protect that possibility. I would rather you use your power to see that the Constitution's bar on insurrectionists is enforced and Trump doesn't regain power. That seems like a better use of your position. Like, what the fuck are we talking about? And what could they possibly have gotten?

0:32:04.6 Rhiannon: Right.

0:32:05.2 Michael: Like, there are two big Trump cases right now. There was this case and there was his immunity case, which we discussed just a couple weeks ago in our Nixon v. Fitzgerald. Now, a lot of people are saying, well, maybe they got some concessions in the Trump immunity case and the criminal case. But Trump has already gotten everything he wanted out of the Supreme Court on that. Special counsel brought that case to them in December and said, hey, let's skip the DC circuit and why don't you just hear the immunity case and let's get it done with. And they said no, and they wasted everybody's time for three months, and then took it up on appeal from the DC circuit. So they didn't get that expedited review. When they took up the appeal, they could have scheduled arguments for early March. They had an open slot, I think, March 18th. Nope, April 22nd. Pretty much guaranteeing this is going to be an end of the term decision.

0:32:55.2 Michael: So they didn't get that. They didn't get expedited review in that sense. So what the fuck could they have gotten? They didn't get the majority walking back from their, oh, this requires congressional legislation in this case. Trump has assured himself that he will not be disqualified for engaging in insurrection in this election, and assured himself that it is all but certain any criminal trial that takes place regarding the insurrection will start so late that he will not be convicted before the election. It might not even be able to start before the election. But even if it does, it won't be taken through completion before the election. He's gotten his delay. He's gotten his place on the ballot. So what the fuck did you get? I want to know. I think we deserve to know.

0:33:43.3 Jay Willis: The way the Supreme Court has handled these two cases in the space of, what, a week, like that's it for holding him accountable for January 6th before people have to vote to decide whether or not he gets to be president again. He is functionally 100% insulated from legal consequences as it pertains to his electoral chances, which is all he cares about, and for our purposes, all that matters.

0:34:08.3 Rhiannon: Yeah, effectively, what matters, right? It's like, does he get to be the president again? Like, that's the big fucking thing.

0:34:15.3 Michael: And it all happened without a fucking peep from the Libs. No statement about the granting of cert, no dissent in this case, nothing. Trump gets his talking point. Trump gets a sound bite. Oh, see, I am totally exonerated. And I know people who don't really engage heavily with politics see this and say, oh, I guess he didn't engage in insurrection, and move on with their life. And that's it. What the fuck did you get in exchange for giving Donald Trump and, frankly, John Roberts this massive, massive PR win? Because the only possible answer I can imagine is, well, either they were going to delay the criminal trial entirely past the election and now they're not going to, or they were actually going to give him immunity. And frankly, if those were the other options and our choices were like, oh, you get like a fiery dissent in this case and the conservatives being super in the tank for Trump on immunity, I think that's preferable. I think that's better.

0:35:23.0 Jay Willis: Deal. Absolutely.

0:35:23.9 Michael: I think that's better. I think it creates clarity in what's at stake at the election and it creates clarity in what's at stake with the court. Here, all you're doing is obscuring what's going on for some ephemeral, unknowable benefit, because from the outside looking in, you got nothing. You got fucking worked.

0:35:45.8 Rhiannon: Yeah, I think the sad reality is they didn't get anything out of it and they don't care.

0:35:53.2 Michael: Yeah, I think that's right.

0:35:53.3 Rhiannon: That's likely what happened. They think this is sufficient. They think this is the liberal position. It's really, really deeply disappointing.

0:36:01.4 Michael: Yeah, it is in a lot of ways mirrors this sort of, oh, well, yeah, January 6th was really bad, but the idea that we do anything drastic in response, well, that's crazy talk.

0:36:14.6 Rhiannon: Yeah.

0:36:14.7 Jay Willis: Even worse.

0:36:15.0 Michael: It's in its own way, a soft January 6th denialism.

0:36:19.8 Jay Willis: It's the same strain also is sort of the mainstream Democratic line of what the Supreme Court is doing right now is bad. Adding justices to the Supreme Court would be even worse.

0:36:29.9 Rhiannon: Yeah, totally.

0:36:30.4 Jay Willis: It's like, what are you talking about? How do you possibly think that?

0:36:33.7 Rhiannon: Yeah.

0:36:33.8 Michael: Yeah.

0:36:34.1 Jay Willis: I wrote about this today on Balls and Strikes. Again, great website, ballsandstrikes.org. You should check it out. But like being a liberal justice, it sucks right now. Like you don't have that much power. Most of what you're doing is just like chronicling the end of American democracy and writing obituaries for the civil rights that you're not able to save. But this is one where like the process, the label you use, it actually does matter.

0:37:05.8 Michael: Absolutely.

0:37:06.0 Jay Willis: At least a little bit, because it changes the numbers and it changes the media narrative. Michael alluded to this, but keep in mind that like most normal people, bless them, they learn what they know about the Supreme Court from looking at the headlines. They are not reading these opinions, and I commend them for that exercise in self-care. But like what did all the headlines say? Trump wins 9-nothing. Trump wins unanimously. Supreme Court rules unanimously for Donald Trump. And that's true, like in a technical, formal sense, as we've talked about. But their points of departure from the majority opinion, they're substantive. It matters. They are saying the court is going out of its way to protect Donald Trump. That is a big deal. And they could have used, again, what power they have, to, if not change the result, at least expose how in that tank, this court is for Donald Trump.

0:38:05.0 Jay Willis: You could have pressed on this weakness. There are five justices here who are writing him an insurrection hall pass. And you could have pointed that out.

0:38:15.7 Rhiannon: Exactly.

0:38:16.1 Jay Willis: And it just reflects a really disappointing lack of understanding from the liberals about the court's role in politics. This is a choice that allows the conservatives to not just hand their guy a win, but to portray the court as unified as this principle defender of the constitution and of the rule of law. I know you guys talk a lot about the investment of John Roberts in this practice of using the court's reputation for non-partisanship in order to further the conservative policy agenda. If the liberals wanted to resolve this case in a way that makes the court look the best and makes John Roberts feel the happiest, I don't know what they would've done differently here.

0:39:01.5 Michael: Yeah. As you guys can tell, I'm angry at the Libs. I'm very angry at them. A major fucking missed opportunity.

0:39:11.4 Jay Willis: Missed opportunity. Yeah.

0:39:12.9 Michael: I do think it's worth noting that the majority here is essentially the opposite of Shelby County v. Holder, which I have described I think on this podcast is the worst opinion of the Roberts Court. It's certainly easily a top five. And that case basically said, yeah, Congress has the power to enact legislation enforcing the 14th Amendment, in that case, the Voting Rights Act, but that power is limited by state's rights, and as such, we're striking down all this stuff about free clearance in the Voting Rights Act. The result of which, by the way, is the Libs, in their concurrence, are saying we can't have a patchwork and chaotic national election. One way the national elections are patchwork and chaotic is citizens access to the ballot. Voter access to the ballot is very chaotic in patchwork because in part of Shelby County, which was essentially the literal opposite of this case, saying, well, actually Section 5 is great and all, but state's rights.

0:40:25.8 Michael: And now the same fucking people are saying States's rights, Section 5 of the 14th Amendment. What are talking about states' rights? This is all about federal power. It's galling. It's galling. Josh Chafetz, a law professor from Georgetown on Blue Sky said something like, I guess the Section 5 of the 14th Amendment doesn't really exist to empower Congress so much as to be used as a cudgel against people when Congress is silent. And that seems right. And I do think this case is as bad in a lot of ways as Shelby County. The Libs, they cite Robertson Dobbs and they cite Bush v. Gore prior dissenting and Bush v. Gore. And I think they're right to raise the specter of both those cases. This is in the realm of Bush v. Gore and in the realm of overturning Roe v. Wade. And look at you, you're in fucking concurrence on that. Come on. How do you whiff it that bad?

0:41:28.9 Jay Willis: One of the really interesting aspects of this case getting teed up before the US Supreme Court is the way the question presented was framed. So usually when the court grants cert in a case, they do so in order to answer a very narrow, very clearly defined legal question. And this one was notably, maybe ominously in retrospect, open-ended. It was, "Did the Colorado Supreme Court err? Did it make a mistake in kicking Trump off the ballot?" Which, of course, just invites Trump's lawyers to make every argument under the sun of why the Supreme Court of Colorado might have made a mistake. And they did. And some of the reasons were sillier than others. One thing that they felt confident saying out loud in public is suggesting that maybe the president of the United States is not an officer of the United States. And maybe the presidency of the United States is not an office of the United States. Incredible though this may sound, those two things I just said are distinct arguments.

0:42:37.0 Rhiannon: Yeah.

0:42:38.7 Michael: Yes.

0:42:39.6 Jay Willis: That gives you an idea of how bananas, this was.

0:42:44.1 Michael: Another bananas one by the way, was that the presidential oath is slightly different than the oaths that congresspeople take. And that therefore it wasn't the type of oath to defend the Constitution as was being described in the 14th Amendment, the wrong type of oath to defend the Constitution.

0:43:03.2 Jay Willis: Yeah, I don't know who Trump's lawyers are, but I do know they were just the worst people in their one L-sections. Just everybody fucking hated them for raising their hands. But I think one of the reasons this bothers me, and especially the liberals' lack of dissent, is that it's emblematic of a legal system in which what the Constitution means is basically the exclusive domain of appellate lawyers and law professors, who are ostensibly experts on the constitution, on the reconstruction amendment's history. And I wanna be clear that I'm not saying that history and context don't matter, but I'm also saying that the words on the page say that if you engaged insurrection, you can't hold office again. And words have to mean something.

0:43:53.9 Jay Willis: And the Constitution was not written for appellate lawyers. It was not written for court of appeals judges. It was written for lawmakers who are passing laws. It was written for the executive branch who are enforcing laws. It was written for the people who are subject to the laws, who are subject to the constitution, who look to the constitution for their rights that the government ostensibly cannot limit. And there has to be room for the disqualification clauses language to apply in contexts that the reconstruction Congress may not have specifically had in mind in the wake of the Civil War. The bottom line is that if you need to be a historian or appellate lawyer to understand what the law means, ostensibly the only thing that the law can mean, that system doesn't work. That system is a failure.

0:44:48.4 Rhiannon: Yeah. Absolutely.

0:44:51.0 Michael: And I think the point about the question presented is very good, how broad it was, because I think at the end of the day, everything Jay said is correct about how they tried to make the law opaque to the layperson. What was really going on here was just them being like, well, look, this can't be right. We can't just...

0:45:13.1 Jay Willis: We got to figure something out.

0:45:14.7 Michael: We got to figure something out and give us an off ramp. Give us some way to get off this train because we don't like where it's headed. And it's clear that all nine Justices felt that way. And it really comes down to they didn't have much more of a legal principle beyond like, I don't like this. It doesn't feel right. There is this almost trite saying in law that hard cases make bad law. And I think this is the prototypical example. It's a hard case. It is, not because the Constitution is difficult to parse here, and not because is difficult to understand what insurrection means or whether or not the fake elector scheme and the January 6th riot counted as insurrection. It's difficult because Donald Trump is still wildly popular and the presumptive nominee for president and competitive in the polls.

0:46:18.6 Michael: And there are real practical considerations for the court about the extent of its power, its legitimacy, et cetera. And I appreciate that. I do. But the other half of the saying is, hard cases make bad law and this is bad law. It is incongruent with the plain text of the amendment. It's incongruent with the meaning of the amendment. It is not congruent with principles of self rule, to be frank. And it is a major, major loss for not just one political party, but for democracy. And the fact that the liberal sign onto it is just extremely disappointing.

0:47:03.9 Rhiannon: Yeah.

0:47:04.0 Jay Willis: I got a quote for you guys. You wanna hear it?

0:47:05.8 Rhiannon: Okay.

0:47:06.0 Michael: Alright. Let's hear it.

0:47:09.7 Jay Willis: Today's decision, especially the fact that it was unanimous, 9-0, is both unifying and inspirational for the people of the United States of America.

0:47:17.6 Rhiannon: Who fucking said that?

0:47:18.0 Jay Willis: Donald Trump after hearing of the opinion.

0:47:19.7 Michael: Oh, God.

0:47:20.9 Rhiannon: Amazing. Amazing.

0:47:22.3 Jay Willis: If you're a liberal justice and you just wrote an opinion that refers to Donald Trump as an oath breaking insurrectionist, and that guy is turning around and offering that quote about your decision, you did it wrong, swing and a miss.

0:47:36.8 Michael: Yeah. You fucked up.

0:47:37.7 Rhiannon: Big L.

0:47:38.8 Michael: It is a huge mark on your legacy that you did not understand how this would play.

[music]

0:47:50.8 Rhiannon: Thank you so much, Jay Willis for joining us. I think you were an incredible Peter replacement.

0:47:55.9 Michael: Absolutely.

0:47:56.6 Rhiannon: I loved the opportunity to try this out without Peter. See that we can absolutely do it without him.

0:48:03.3 Jay Willis: Can you not tell the listeners about the email I send you every week.

[laughter]

0:48:10.2 Michael: People also can't see that Jay's even wearing glasses very similar to Peter's glasses and a fashionable hoodie. It's great.

0:48:17.5 Rhiannon: These guys are a dime a dozen. [laughter] Anyways, thanks for being on Jay.

0:48:23.7 Michael: Yeah, thank you.

0:48:24.8 Rhiannon: To our listeners, you're welcome for an emergency episode.

0:48:27.8 Jay Willis: Thanks for having me, guys.

0:48:28.9 Michael: Follow us on social at @fivefourpod. Subscribe to our Patreon, patreon.com/fivefourpod, all spelled out. Be well, stay strong. We love you. Bye everybody.

0:48:45.3 Rhiannon: Bye.

0:48:46.5 Jay Willis: Go Cheeks.

[laughter]

0:48:51.5 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

0:49:25.6 Rhiannon: Three Liberals, Sotomayor, Ketanji Brown Jackson... Three Liberals, Sotomayor, Judge...

0:49:33.6 Jay Willis: Who are they?

0:49:33.7 Rhiannon: Who fucking are they actually?