Keep this in mind as you watch or read about oral arguments, this week and (maybe) later, concerning Supreme Court rulings related to the 2024 election.
In their questioning of the different counsels, the justices, whether right or left, struck me as concerned with the precedents and punctilios of the law. They seemed blissfully unaware that the candidate at the heart of the Colorado case cared nothing at all about either, or indeed of anything other than seizing power to avoid legal peril for himself.
In either words, they wanted to find a past legal guide to a crisis of a kind and magnitude not previously seen in American history.
They fear a ruling that could take power away from the American electorate, even as they miss the larger point that the appellant in this case was trying to do precisely that in the last two Presidential elections.
They fear a ruling that could involve them in deciding a Presidential race, even though one justice (Thomas) was part of the court majority that decided the critical Florida count 24 years ago and even though several others (Roberts, Kavanaugh, and Barrett) were part of the effort to induce the court to come down in the GOP’s favor.
They fear the application of the Fourteenth Amendment in a realm not seen before, ignoring the clear language of this measure concerning those who foment an insurrection--even though they have long embraced the dubious notion that the amendment's reference to "persons" also applies to corporations.
It might help if the
press starts reporting on the state-by-state battles going on right now that
will determine if democracy will be subverted this fall. In the meantime, we
might ask for a bit more skepticism as the justices practically beg to let this
latest judicial c(o)up pass from their lips.
(For more on the Supreme Court justices' questions in the oral arguments on the application of the 14th Amendment in the Colorado primary cases, see Amy Howe's post yesterday on the SCOTUS Blog. It is a fine piece of its kind, but also, alas, illustrating Ms. Lithwick's point that "entire systems and structures" are not being covered by the press.)
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