Did the Trump Colorado Decision Make You Feel Crazy? You're Not Alone.

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:52 Thomas: Hello, and welcome to Opening Arguments. This is episode 1012. I think I may have incorrectly said that last episode, but that was a trick. This is the real 1012, and I'm the real Thomas Smith, and that over there is the Real Matt Cameron. Real lawyer, how you doing? Oh,

0:01:07 Matt: I might be an originalist now, Thomas. I don't know. Yeah, it's gotten bad.

0:01:08 Thomas: My God. Anyway, Uh, looking for a new lawyer to be on the show. Tell your friends, everyone. Uh, see if we can crowdsource this. No, I can attest, I've wanted to talk about this for a while, but I, that is, this idea of the 14th Amendment, very clearly barring Trump from being able to be on the ballot in Colorado. And once we had the oral arguments thing, that was like, the, well, reaction from that was, turned out to be correct. Well, now, all done deciding the, like, oral agreements.

It seems very clear, we're going to get an eight one or a nine Oh, or something like that. And I felt out of my goddamn mind. I did not understand, I do understand that reaction to what you heard.

Like, yeah, that clearly was correct, like, that prediction was correct, but I don't understand, I, this case makes me feel insane, and might be a little bit of a different approach for the show maybe, but what I really wanted to do is, I have you, a lot of coverage on this, I don't even know how much you need to, because it seems pretty obvious to me, and I, I am sure there are going to be others out there who have been made to feel insane by what has happened with this case.

And I wanted to represent them and, uh, and put it to Matt and have him maybe try to explain what in the world is going on. I don't know what Matt is ultimate view is going to be, we'll see, but this has made me insane. And if this has made you feel insane as well, stay tuned, because after this very brief break for non -patrons, uh, going to, you, what happened here.

0:02:29 Matt: Remind everyone why everyone hates lawyers so much.

0:02:33 Thomas: You know, some people don't need reminding on that. I think some people it's all the time omnipresent You might say those, those reasons. No, after this break. And go to patreon.com/law if you would like to avoid this little ad break. Thanks so much to all the patrons who make this show happen, seriously. We can't wait to give you a lot off of movies very soon, I'm excited for that. We um are for sure going to do that this month, we have lots of plans. So all good reasons to head over to patreon.com/law. To those who already have.

0:02:38 Matt: That's fair, for sure.

0:03:04 Thomas: Okay, Matt, I, before I just start yelling, I suppose maybe you should give us the basic facts to know what happened for anybody who, you know, hasn't paid attention to this.

0:03:15 Matt: I can keep this brief. It's pretty simple. I'm going to acknowledge that this is super weird. Everything about this case is weird. I'm just going to say mess. This case is a mess. Not just the outcome, not just the decision, but everything that got us here and the last 155 years of history that got us here.

0:03:29 Thomas: January 6th, a bit of a mess.

0:03:30 Matt: And January 6th, a bit of a mess. Yes, that's true. That's why we're here.

0:03:32 Thomas: So critics said a little bit of them. Yeah.

0:03:36 Matt: Personally, I had never given a single thought to Section 3 of the 14th Amendment. I just never, ever had a reason to think about it until January 6th, 2021. And just to basically remind everyone what this section is, it's

0:03:48 Thomas: I read it for you? Would love to read it, Matt, because I already launch into my opening arguments, one might say, for this, because you don't really need much more than just reading the words, in my opinion. So allow me. This is my very scholarly, lawyerly argument of reading. "Section three: No person shall be a senator or representative in Congress or elector of president and vice president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a number of any state legislature, or as executive or judicial officer of any state, to the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote vote of two -thirds of each house, remove such disability."

0:03:49 Matt: Oh sure.

0:04:40 Matt: You hear that as a clear statement, do you?

0:04:42 Thomas: Yeah. "No person shall," and this is the Constitution, by the way, this is not like the suggestion box that they made for the country. "No person shall," and then a bunch of other stuff. And basically the language seems to really want to just include any possible person. Like, it goes out of its way to include as many people as possible. Um, here's what I will say is not clear - I don't think it's a hundred percent clear what would qualify as engaging in insurrection, that's admittedly - Admittedly - Totally, but - That isn't really the issue here, I um, don't want to go into this before you were planned, um, just say that I, I not going to talk about the effing "officer of the United States" office, or officer thing. I swear to God, if that's where you're going with this, I'm going to hang up and the listeners can just get your audio.

0:05:08 Matt: That's problem number one. Problem number one. Wait, You don't think that after the Civil War that the - was intent on making sure that every other office couldn't be held by an insurrectionist except the president?

0:05:36 Thomas: Yep. Yeah, that's, that's, there are people who devote their entire careers to these arguments. And I can't there. Nothing depresses me more than that. Like, seriously, the amount of intellect wasted on like now, if you notice, it's office under and the officer of there's no there's No way that should be important. There's just no way that should be important.

0:05:52 Matt: Prepositions. Yes. Oh, God. No. Yep. Honestly, I was listening to Jonathan Mitchell do that part of the oral argument? And I truly remembered why people hate us, because that was really bad.

0:06:05 Thomas: Not me at first either. It was a double whammy and it's double stupid because, and we're not going to go too deep into it, but I just have to say this. It is a double whammy because it is not just like, oh, does the presidency count as someone who they want to ban? That question. There is also the second question of, oh wait, it says you would have to have taken an oath. Now, did he take an oath not as an officer of the United States? Because is the president an officer of the United States? So there's double whammy there. It's both, did they want to ban the president if he was an insurrectionist? And wait, in the technical airbud rules, it says you have to have takenan oath and violate that oath. Does the oath

0:06:11 Matt: No.

0:06:46 Matt: Yep.

0:06:46 Thomas: That the president takes is a little different than these other oaths? Does that count? Which is just, I cannot, that is truly, I'm glad you said something. Is one of the many reasons why people hate lawyers, because that is insane to me. That's absolutely crazy.

0:06:51 Matt: Yeah, yeah. This was like half the oral agreement and a lot of the briefing. And honestly, the guy walked in, Jonathan Mitchell, walked in thinking, and he basically told the court that he thinks he wins on this, on the officer thing, which is absurd. But

0:07:08 Thomas: Then he kind of gave up on one of them. He was like, oh, that one's kind of dumb, but the other officer thing is good.

0:07:12 Matt: Yeah no, actually Actually, you're right. Yeah. Right. But let's just very quickly, from the 14th Amendment, talk about how we got here, because Colorado had a brought by voters and It went to trial, and it was a full trial of several days, and they brought in some of the evidence from the January 6th hearings. I think some of evidence from the impeachment, they had expert witnesses testify, and the Colorado Supreme Court found that Donald Trump was an insurrectionist and that he He was therefore unable to be on the ballot because of Section 3, which you just read.

0:07:21 Thomas: Republicans, by the way.

0:07:42 Thomas: What's kind of funny is first the court found he is an insurrectionist, but they actually said, oh, he's not an officer. And then the Colorado Supreme Court was like, well, that's dumb. He is an officer. And so I'm sure you're skipping that for time, but I just can't resist like that first finding.

0:07:51 Matt: So Right, yeah. Sorry, I'm skipping ahead, yeah? No, yeah, yeah... Right, no, it is really funny.

0:07:56 Thomas: It is funny that the first court in, ultimately getting him on the ballot still admitted like, well, yeah, he did commit an insurrection, but they relied on that stupid officer thing.

0:08:05 Matt: Right. And I will note, and I'm going to say this more than once probably, but no one else has challenged that finding, that he's actually an insurrectionist. So that just stands. The trial court's judgment stands that Donald Trump is an insurrectionist, but he gets to be on the ballot. So, you know, that might be a problem. Yeah, as you said, the Colorado Supreme Court eventually found this to be that he could be excluded from the ballot. And this goes to the Supreme Court. And it's reasonably well expedited, a little faster than the immunity question.

0:08:29 Thomas: Weird.

0:08:30 Matt: And yeah, no, it was just decided in, I think, three and a half weeks from the argument, which was held about a month ago.

0:08:34 Thomas: Yeah, I think it's like wind, sometimes the wind, like the breeze, trying to account for the difference in speed. I think it's like wind resistance sometimes. Depends on the time of day you submit something. I think that that could be part of it.

0:08:46 Matt: Decision that we got on Monday is pretty weird. It's pretty unusual. And it's a per curiam decision, which means officially it's from the whole court that no one person officially wrote it. But there's also a separate concurrence from Amy Coney Barrett. And there is then another concurrence between the three liberal justices.

And this concurrence, it came out recently from from the metadata, Mark Joseph Stern of Slate pointed out that it looks like Sotomayor was attempting to write a dissent at first and then changed her mind and made it part of a concurrence. And I understand what they're doing here. They want a unified statement. They wanna make sure that all nine justices agree on the outcome, which he can be on ballot and that there's no dissent or appearance of dissent because it's such an important decision.

I get that, except that that the concurrence is a dissent for all intents, but not on the actual outcome. So the Supreme Court found just off the bat, very simply, that states cannot disqualify federal candidates. So that's the first major holding. And everybody agrees on that. Something that even the concurrence says we would have stopped there. That is enough. Lots of reasons, we don't think that states should be able to make decisions on federal elections. And the majority had to go a little bit further and say, well, actually, on top of that, there's only one way that you can actually be disqualified, and that's through enforcement by an act of Congress. And nobody was asking for that, not particularly, and it wasn't necessary, and I think they went too far on

0:09:29 Thomas: Yeah, insane.

0:10:04 Matt: That. But I have to say that the fundamental finding that states can't disqualify federal electoral election candidates, I hate to agree, but I have to agree with that one. My best case for this is essentially what was brought up at oral argument. And I think it makes a lot of sense that if we let let states states start to make these decisions on their own, you're going to get some pretty weird stuff happening.

You're going to find like the state of Texas, because he could easily find that Joe Biden isn't enforcing the border. He's, you know, using the invasion rhetoric, that he's betrayed the country and that he has allowed all those people to come in and therefore he can be disqualified from the ballot. They could have a whole trial on that and that would have to go up to the Supreme Court. It'd be a whole mess back and forth.

You could have all these different states willy-nilly disqualifying people on something that is effectively, at the end of the day, not a categorical thing. The way that, of course, in the Constitution, that it's very interesting because Mitchell, Mitchell, the lawyer for Trump, actually conceded that he thinks it is categorical,

0:10:04 Thomas: Yeah oh that's interesting. You I say that okay. Really?

0:10:59 Matt: Which I think is very strange. I don't know why he would do that because that doesn't help him very much. Because I say quite categorical, I mean you have to be 35, you have not be a citizen of the United States, the stuff that is easy to confirm, that any secretary of state can easily check your birth certificate, check your passport or whatever, and figure out your status. So those things are very easy to determine, but insurrectionist, as you said, not defined. We don't really know what it means, and it's going to require some kind of findings. And it gets messy when the states can decide on these things. All of these Section 3 disqualifications, as was brought up several times in the argument, have been at the state level. And a state court or a state governor.

0:11:06 Thomas: As in state the politician being disqualified. Yeah I just want to yeah. Clear that up in case it wasn't obvious.

0:11:36 Matt: Yeah, sure. Have been a few instances in which Congress refused to seat someone, and that's a thing they can do. The idea of disqualifying someone before they're on the ballot is new, and that hasn't been done before. So there is, okay, I'll make the best argument that I can think of for the majority opinion, which is that if they had not said definitively how this can be done, we could actually have been facing a massive constitutional crisis on January January 6th, 2025. In that, it is possible that the Democrats could have actually done their own January 6 and refused to recognize the certified election results.

0:11:41 Thomas: Please Don't call that journal January 6th. It's not the same.

0:12:11 Matt: Well, it would be literally their own January 6. And it's not the same. I'm sorry. You can strike that, actually. Let's cut that.

0:12:15 Thomas: Yeah. But recognizing that, no, no. I think it's important because it's like, again, I'm sick of this relativism, you know? It's okay. I won't go off. Go ahead.

0:12:20 Matt: All right. You're Right. No, no, I'm saying only in the sense that it would would cause a crisis, not going to get shot. It would be the same thing where they're trying to stop the certification of an election, except they would actually have valid grounds that anybody who understands what insurrection is would have to recognize.

0:12:34 Thomas: It Yeah mm. Well, also, also imagine what they would say is, hey, we're not saying the election was wrong. We're not saying the votes were wrong. Imagine they would say, yeah, okay, in the event that he won, I imagine they would saying, well, yeah he won. We are not going to pretend there is a bunch of Rudy Giuliani -esque USB drives or anything. But, here is this part of the Constitution that seems pretty clear that says he can't hold this office. Which I think that's an important distinction. It wouldn't be invalidating votes or whatever.

0:13:02 Matt: It is. Sure.

0:13:09 Thomas: It'd be like, it'd be the same, in my opinion, as if we found out he was 33.

0:13:14 Matt: And they just refuse to see them, except that it is more of a judgment call. It's not quite as objective and and clean. And it would cause all kinds of chaos. Again, I think the majority went too far. I agree that they shouldn't have done this. They shouldn't've said it this way. Yes, the other issue here is, of course, also the issue of what what exactly was going on when they actually passed Section 3 and made it law? And it was a very different time. And when I say that I might be an originalist now, I don't mean a legal originalist, which means that I think we should apply things exactly the way they applied them back then. I think I mean more of a historical originalist in that I Think in this case, especially, it's actually very important to know the circumstances under which they passed this and what they were thinking at the time, because there is no precedent whatsoever for any of this. None. Not really.

0:13:15 Thomas: Yeah. Yeah.

0:14:00 Matt: This is the weirdest case I've ever seen in front of the Supreme Court because they just have to make it up. They have to makes something up because they got to answer the question.

0:14:07 Thomas: The Supreme court making something up that never happens.

0:14:09 Matt: Who knew? I know. I know, but really extra this time. Not even overturning anything that's established. They're just kind of going off the vibes of what they see in front of them.

0:14:18 Thomas: Would you like me to represent the everyman who's extremely confused and insane by this?

0:14:24 Matt: Go for it. What do you got?

0:14:25 Thomas: Okay, what drives me nuts about this is I have to address one argument that even, it was either Sotomayor or Kagan, there was voices, one of them who made that very argument of, look, then can't have a state disqualifying and and deciding a national election. And I'm sorry, maybe I'm under a misunderstanding, Matt. Please, I am, please you correct that misunderstanding. But several things make no sense about that.

First off, one might think, if you were just listening to that, one might thinking, oh, that must mean the presidential ballot is the same in every state then, right? There must be, federally, someone must decide, okay, here's who's on the presidential bullet, and it's the same at every state. Because you couldn't have a state deciding who wins a federal election or who's on the ballot. That would be way too much. And you'd be wrong. They do do that.

They're different states keep different people off of the ballot for different reasons. That's already happened. They even point out in this case that Colorado is allowing, for some reason, a non -citizen on the ballet. So first, so already happens. I don't really understand why that's a problem. Secondly, how would it be one state deciding, I think they tried to make some argument that's like, well, because one court has recognized it automatically, some other states will be forced to recognize that. But they could just make their own different decisions about whether or not they think he's an insurrectionist, and I actually don't see a problem with that.

0:15:41 Matt: Or Pennsylvania, then maybe they do decide the election for the country. Could happen.

0:15:45 Thomas: One might note that already happens. It is already the case in our dumb system that a couple of states decide the election every single time. And brought up Texas, for example, yeah, we can think of bad examples that where this would go bad, certainly. But like, states are already all or nothing, and almost all of them are all or nothing in their electors. Seems pretty weird that you just disenfranchise a whole bunch of Democrats in Texas or Republicans in California, they don't get any vote.

They don't get any say, really, in the presidential election. Furthermore, I think it's even true. Now, I don't know if they adjusted this with recent Supreme Court cases, and you can tell me if they have, but states could literally pass a law, if they did it ahead of time, saying, hey, no votes on the presidential selection. We have electors. We're going to appoint electors. Those electors, they'll decide who's our electoral votes. That is something they can do too.

No, if they enforce a pretty clear, in my opinion, part the Constitution, an amendment to the Constitution, if they simply enforce that by not allowing Trump on the ballot, that's somehow out of bounds. That's no fair. Sorry, I'm a little heated on this, man. I truly don't, I'm not mad at you. I'm mad at the audience. I mad at this. I don't understand it.

I am also mad that it seems as though, again, we got a unanimous decision on, least so far as, shouldn't states decide the federal election kind of thing, as you said.

0:17:01 Matt: Let's talk about the fundamental heart of the question here, which, which is whether or not section three is self-executing. And this is one of those things where when people say the constitution is clear, no good lawyer is going to agree with that because it's not. There's so many different ways that you can lawyer yourself out of or into so many of these arguments. To find out if section three is supposed to be self - executing or not, we have to try to go back to when they actually passed it,

0:17:07 Thomas: Sure. Fair.

0:17:26 Thomas: Get out the original Constitution, you set it on a table and just wait and see if it like executes or not, they actually Have To Do that. It, after it's a test, they

0:17:32 Matt: It just does anything. Going to tell you that there is not a lot of clear answers, but let's just talk about Salmon P. Chase for a second.

0:17:42 Thomas: Sure. I love it.

0:17:44 Matt: Yeah, my man was the Supreme Court Justice, excuse me, my man was the Chief Justice of the Supreme Court at the time after the Civil War ended. And he was a pretty good guy from all accounts. He was a very radical Republican, which means at the time that he was an abolitionist, means something different from being a Radical Republican today. Right. Yeah. He actually just on his own took a little tour of the South weeks after the war ended while he was Chief Justice, because he just wanted to see how things were going.

0:17:48 Thomas: Yeah. Which was, yeah, which is actually good at the time. Yeah. In his RV.

0:18:09 Matt: And yeah, just took a steamboat tour. And he's a very conscientious guy, but he ended up making directly contradictory decisions within the space of a year in two two different situations. The first was when Jefferson Davis, the former president of the Confederacy, was going to be tried for treason. And by the way, I just learned that he was known to a lot of people as Jeff. So somebody named Jeff was responsible for the Confederacy.

0:18:09 Thomas: Yeah.

0:18:30 Thomas: Jeff. Wow.

0:18:32 Matt: Yeah, I know. Jefferson's so much more distinguished, but sorry.

0:18:33 Thomas: Also, Also, I think Jeff Davis was on Whose Line Is It Anyway? Isn't pretty sure. That's he started the, all right. Look into it. Could be the same guy.

0:18:39 Matt: So Jeff was up for treason, and they had to try him in Richmond, which of course was the capital of the Confederacy. And the federal, federal government was very worried about this because they did not want the embarrassment of the former president of the Confederacy being acquitted of treason after having just won the war. And Chase himself actually agreed with Lincoln for the most part that we shouldn't really be prosecuting former Confederates, which is very generous. He just wanted to try to give an amnesty and get this behind us and move on.

0:19:05 Matt: He was actually even, yeah, that's not great because he was also potentially opposed to Section 3 and would have allowed them to run for office. And so he got his way out of the Jefferson Davis thing because he was actually, back then, Supreme Court justices actually could sit as trial justices in their assigned circuits. So he was actually responsible for the trial of Jefferson Davis, and he made it pretty clear to the defense attorneys ahead of time that if they filed a motion to quash, he would grant that motion to quash and kill the indictment because he believed at the time, in 1868, that Jefferson Davis was already disqualified because of the 14th Amendment. It was automatic. That didn't take an act of Congress. And then we skip ahead to May of 1869, not even a year later, and we have Griffin's case, which you heard discussed a lot during

0:19:04 Thomas: Yeah. Which is bad, but yeah.

0:19:18 Thomas: Oh, yeah. Yeah. Yeah.

0:19:51 Matt: This oral argument, came up a lot, because Griffin's case is really the only case on point that's even close to on point. It's not a Supreme Court case, it's a circuit case that he happened to decide. So it was the chief justice at the time sitting as a circuit justice. And he found in that case, which was a challenge to a criminal conviction that overseen by a judge who was a former Confederate. This person was applying for a writ of habeas and saying, look, I can't be convicted by a guy who's disqualified by the 14th Amendment. And in that case, Chase found that Congress had to do something to execute the 14th Amendment, the section three. There is potentially a way to distinguish these things and to make them work. But just off the bat, this is the only precedent we have are these These two decisions made by the Chief Justice in 1868 and 1869, which appear to directly contradict each other.

0:20:39 Thomas: I just wanted to triple check, Matt, cause I think I actually heard it represented. And again, this could be any amount of error in the presenter or in the me hearing it. I thought I heard presented the other way, that he, like, first made the decision in order to try to be kind, conciliatory for political reasons, wrote, wrote, would, OK, yeah, the 14th Amendment doesn't bar someone from office for being an insurrectionist automatically. And then later did the opposite. That was how I heard it presented. Now, did you triple check it, which happened first? I'm not sure how much it matters, but yeah.

0:21:08 Matt: Looking at the briefs. So the amicus brief that was filed by 25 Civil War historians, which by the way, I think that was really noticed or cited very much by the majority. I think it would have been helpful if they'd taken a closer look at it.

0:21:18 Thomas: Yeah. Were some really good amicus briefs, as we say on the show here. Are some really good ones. It has been interesting to be like, holy crap. Okay. We're a bunch of scholars who know a ton about this exact thing. Here's what we think. And then for the Supreme Court, just be like that doesn't matter. We know better than you.

0:21:35 Matt: Yeah, no, we're, what do you think we're originalists or something? You think we want to hear about that?

0:21:36 Thomas: Yeah, yeah, yeah. And And most of the time it's them saying stuff about like the Second Amendment or something. That's like, hey, obviously this is insane. They're like, no, I know my history better than you.

0:21:43 Matt: Yeah. Yeah. Yeah, sure. Sure. I mean, in this case, literally, you've got historians telling you what the history is, and they're just not acknowledging it. But I know that the trial of Jefferson Davis was in 1868, and Griffin's case was decided in 1869. So the same guy is making this decision. And there is some distinguishing to be had. But the reason that we're looking at these cases, which aren't even Supreme Court cases, is because we do not know. And this, okay, this is one of the many weird things about this entire thing. The Senate spent three days in a secret committee coming up with the final version of Section 3, and we have no records from why they decided to do what they did. Every one of those people involved in that took it to their graves, didn't put it in memoirs or papers or explanations or anything. So there's no way to do originalism on this, actually, because the original proposal was that they were going to temporarily disenfranchise former Confederates and they were going to limit it to that circumstance.

0:21:57 Thomas: Hmm. Okay.

0:22:25 Thomas: Weird.

0:22:34 Thomas: Yeah. They were going to take away their right to vote, it was by a proposal on the table, which seems pretty serious to me.

0:22:37 Matt: Yeah, which but you did actually participate in this horrible civil war. Of the many reasons why we can't really apply what was going on at the time to now, because we don't really know what they were thinking. It's very likely they were never considering a situation like this, that they had no idea that anything like this could ever happen, that somebody could be the president, incite an insurrection, and then try to run for president again. Is pretty weird when I say it that way, isn't it? But,

0:22:42 Thomas: Yeah.

0:23:01 Thomas: I don't want to lose track. I hope you don't lose track of my objections. We'll come back to those. I think people want to hear answers to those arguments. But I'm realizing this is the first time that I can remember in this of OA that we've had some jurisprudence talk in a serious way. And I guess I just want to ask you, let's say you were on the court, would be your method of jurisprudence on a question like this?

Because I do get the idea of wanting to look at historical context. And I think there's elements of quote-unquote originalism that are like, no duh, right? But then there's the elements that are, if you apply it badly, which is, oh, I'm going to do just my own amateur history and then decide what I want it to be and say it's originalist. That's, there's that. There's also textualism in there. But usually I feel like the more left wing approach is like, yeah, stare decisis, man.

Like, let's see what what has been done. And granted, in this case, there's really not much like 100 percent. And that's a challenge. So if you were Matt Cameron, Supreme Court Justice Matt Cameron, how would you go about making a decision like this?

0:23:58 Matt: I mean, I would actually do something very similar to what Salmon P. Chase did in these two decisions, because both cases, he was trying to avoid a disaster. So in the first case with Jefferson Davis, he did not want to have this go to trial because he thought it was going to be bad for the country. And he generally thought that we should just move on and let these people be, in the Griffin's case, he didn't want to undo all of the decisions that had ever been made by people who had participated and then ended up in office because it would have been chaos to do that, right?

0:24:24 Thomas: Okay, that seems like a different question, but I won't, yeah, go ahead.

0:24:27 Matt: No, it's the answer you're looking for because he was being a pragmatist, which is very much where I'm coming from. And I think that's very much the leftist position is what is the best thing for this situation? Because we have to acknowledge the laws are made up, the Supreme Court's going to do what it's going to do. And this, this case to me is a great example of how they're just going to get to where they're going to go.

0:24:28 Thomas: Yeah. Yeah, yeah. I was just going to say the same thing. If I just want to note, like, don't you think it's a little, it's one thing when you're trying, when the Supreme Court is just being activist as they they are now, and just ruining laws written by Congress. It's another thing for, it's just a constitutional amendment. Like, I feel like that should be a pretty serious deal. Am I wrong?

0:24:46 Matt: And no, I mean, it really is.

0:25:04 Matt: No, no. This is, but again, they have no, it's a blank slate. It's in a way that, I, I think the only thing I could think of that's similar is the, what the third amendment about quartering troops. There's not a single Supreme court case on that. If that ever came up, they'd have nothing to work from. There's Earl Warren and the Warren Court. I think they're the best iteration of the Supreme Court out there. And they were very much looking to how do you get the best result for people? That's what I care about.

0:25:30 Matt: And the best results for people in this case would be to keep Donald Trump off the ballot. I have no doubt about that. I don't know how you get there exactly. I think that I could have made an argument if I were a Supreme Court justice to do that. I'm just saying, and the way I was starting this in the positions we've taken here, is I'm telling you how they got there and

0:25:09 Thomas: Mm -hmm. Yeah. Mm -huh. Yeah, interesting.

0:25:45 Thomas: Yeah?

0:25:45 Matt: Why they all universally decided this. It's very complicated. It's very hard to say exactly what the right answer is. But in our hearts and minds, we know that Donald Trump should not be allowed to run again. Like, that's just fundamentally he's running at this point. And I just want to say this out loud because I don't think enough people are saying this clearly out loud. He is running so that he doesn't have to face criminal consequences in 91 pending indictments, or he thinks he can get out of them by running for president. That's insane.

0:26:12 Matt: That's actually insane. And I don't think enough people are saying that out loud. I just wanted to mention that. So I I, as a Supreme Court justice, I will shamelessly tell you that I would find a way to get to the right result, which is not what you're supposed to say, obviously.

0:26:10 Thomas: Yeah. Okay, maybe I need to get you to answer some of my objections, because I already feel like Like the for the sake of argument and clarity, can we just stipulate that he satisfies the committed and engaged in insurrection? We could argue about that separately, but like for the purpose of this, let's stipulate that he did. Let's just, just For the Sake of Argument, I would really think the burden at the very least, the burden would be on someone who was trying to tell me why he should be on the ballot? Because we've got the constitution, which also says if you're not 35, you know, it also says you got to be a citizen. That seems pretty clear. I think at the very least, the burden's got to be on you to say, well, why should this insurrectionist be on the ballot?

0:26:33 Matt: Yeah, sure. Sure.

0:26:59 Matt: Someone has to make a finding that he's an insurrectionist, unlike the citizenship or age thing. There has to be, and even the Colorado people seem to be acknowledging to some degree that there has to be some determination made. And they did that at trial. And one of the Supreme Court's problems here was that maybe we have 51 different trials in 51 different jurisdictions that are done different ways, that have different evidence.

0:27:19 Thomas: Maybe.

0:27:19 Matt: And maybe we have this nightmare where we have to review all of them, right? That could, presumably, that's a thing that could happen.

0:27:23 Thomas: If they think they need to review them. Yeah, to point this out, all of a sudden, the side of the court that is always like, well, we don't care about the consequences of repealing Roe v. Wade, of taking away Roe V. Wade. We can't think of consequences. We're a court. We call balls and strikes. And they completely abandon that. They completely abandon that in this case to reach the result they want.

0:27:42 Thomas: The text says insurrectionists can't be on the ballot. The text does that. But we don't get a single one of the conservatives saying, well, aren't we bound by the text and what it says? Don't we have to do that because we're originalists? No, it's all about, well, OK, but what about these external consequences? What if? And I am so sick. Apologies to go off a little bit. I am so sick. I thought we were done with this. I'm sick to death of the argument that we can't hold Trump accountable because what if an asshole who's a liar did the same thing, but in reverse for Biden, can we be done with that argument? Because it's worthless. We've already seen that they said, what, what if, if we impeached Donald Trump, they're just going to impeach Biden. Well, they have been trying to do that. They've been trying to impeach, they did impeach Mayorkas, right. They actually did

0:27:33 Matt: Yeah, yeah. Yeah. Point over nothing.

0:28:27 Thomas: Do that for nothing. Trump literally kills somebody, you can't be like, well, we can't, you know, sentence him for murdering a guy. Because then what if a Republican says that Joe Biden murdered someone? Who cares? You have to. It's at a certain point you have to just actually do what the law says, don't you?

0:28:44 Matt: Thinking about this in my role in this show as a lawyer and as someone who's trying to explain what the Supreme Court did. I'm here to tell you what they did. I

0:28:48 Thomas: Sure. Yeah. I'm not mad at you, Matt. Mad about the hypocrisy of the court. Sorry. That's what I want to make very clear. That's when I'm angry at.

0:28:53 Matt: Gotcha. No. I want to make clear that I think there should have been a different result. I just, it's hard to get there, but I think they could have. I'm not here to justify the Supreme Court in any sense in anything they do. I think that it's fundamentally, we've given them way too much power and they're doing far too much with it. We're holding them up as these infallible law priests who can just, you know, make these final decisions on things like this when it's just, they're just going from whatever's in front of them and whatever they want to do at the end of the day. I mean, at the other day, what they're doing is no different from what I just said. They're just getting to the result that they want, I can't disagree with a lot of what you're saying about consequentialism and about the fact that we cannot think about the worst possible thing that could happen every time that we do something. There is a really open question about how, because what this means, what this section means and how you were actually supposed to use it.

0:29:06 Thomas: Yeah. Yeah.

0:29:38 Matt: At the end of the day.

0:29:38 Thomas: Yeah. No.

0:29:39 Matt: Because at the time, this is another really important thing, and I'm sorry to bring up the history again, but it does matter a little bit, that the and elections were done extremely differently. You didn't have a secretary of state doing the gatekeeping.

0:29:43 Thomas: No. I love the history yeah yes I heard that it was very interesting I think It was, was it Thomas, or maybe I can't remember, one of them was like, "Hey, why don't we have more examples of this?" And the guy was like, "Well, they didn't even do ballots the same way back then." Like, that's, and then by The time they did, here's another thing to note, you've already said this, but by the times they did do balance differently, this racist country had decided to, let's just like give everyone amnesty. And so there no longer were any insurrectionists. So the answer to why there isn't more history, I think it's pretty clear.

And it's, that shouldn't mean that we can't utilize the principles that I think they were trying to enshrine in this amendment just because there didn't end up being an example of it we can easily go off of, but I totally grant that it is difficult. I did, when I first heard this, I thought there was no way, you know, like when I first heard this, and I think, I can't remember if you've mentioned that you felt the same way.

I felt like, ah, this is dumb, there's no way this will work. But then it's like, well, who is supposed to make the determination that he is an insurrectionist? It's like he's supposed to be, it's he needs to be deemed that by some authority. And then after that, it becomes the same as you're not 35, or you're not a citizen. I feel like largely a lot of people agree on that. It's just like, who makes that determination?

I actually think it was very reasonable for Colorado to be like, I guess we do, I guess before we put them on the ballot, we make that determination. They held a whole ass trial, as you said, they gave Trump, Trump had a bunch of complaints about like the trial, and they're totally invalid. They give him a lot of time, he could have done whatever he wanted, and they made a determination. I think it's a really fascinating question to say, well, shit, what do we do with that? What does the Supreme Court do with it? Yeah.

0:29:50 Matt: Yeah. Yeah, right.

0:31:25 Matt: And if not an act of Congress, and if not a state disqualifying, because I think that there's issues with both, how is this supposed to happen? How is Section 3 supposed to be enforced? And we can look to history, and there's only been so many times that Section 3 has actually been used. And it's typically been with Congress people, and that what has happened is the governor has refused to certify their election and pass it up, or Congress itself refused to seat the person because they recognize they're disqualified.

0:31:51 Thomas: Yeah.

0:31:51 Matt: And in this case, there's no equivalent, obviously, to that because it's the president. The only equivalent that I could think of is the thing that John Roberts would hate the very, very most. Imagine January 20th, 2025, John Roberts refuses to swear in the president of the United States. And says that's something he could do.

0:32:07 Thomas: Interesting. That sounds even worse though. Who, is he deciding that himself as like, he got designated on the chore chart? Like you're the one who has to read the oath or that, but that is, is that constitutionally mandated?

0:32:09 Matt: Again, yeah. Chief Justice isn't the president, right? So, I mean, that's traditionally. The Constitution doesn't mandate it, but it has been administered by the chief justice, except in the death of a sitting president has pretty much been the only exception. So just a tradition. And

0:32:27 Thomas: I imagine if we got a rogue justice, then, the next justice would just be like, all right, I'll do it. And then they would probably, and that, that is a mess. That's a total mess. I, that's not a good way to do it, but going to be a lot of people screaming at their phones right now for, I don't think we've yet pointed out the, just absolute idiocy of the five justice decision. Now, I think you're pretty sympathetic to the nine justice part and okay, I still disagree, but I am at least semi -sympathetic to that.

The five justice part really seemed to be, they wanted to close the door on the Ability to do this because keep in mind, section three, what I read you, "Congress may, by a vote of two thirds of each house, remove such disability." So, based on this decision, it would take Congress only a bare minority to just not pass a bill designating someone a traitor, insurrectionist, so 51 people in the Senate, or I guess it's, there's all kinds of ways 51 people in the Senate could stop the bill, uh, the House plus one, or, or, by the way, the president could not sign it. The president now would have to sign his own bill saying he can't be president if this happened, right? I mean, that's crazy.

0:32:37 Matt: No, Yes.

0:33:29 Thomas: So for a bare majority to be able to scuttle this when the Constitution itself already says, oh, but Congress may by a vote of two thirds, which is pretty, that is pretty strict. That is a high bar, may remove such disability. That cannot be right. I am sorry, that cannot be right.

0:33:30 Matt: That's a possibility.

0:33:40 Matt: Hard to get. I It's just on its face. It doesn't make a lot of sense. Let's talk about enforcement for a second, because what would that bill look like if they passed a bill? Because there was an enforcement Act in 1870. And I don't know if you caught this, but this is one of the very strangest things about this entire thing.

0:33:58 Thomas: Mm-hmm.

0:33:58 Matt: So the Enforcement Act allowed, and I'm going to talk about this for just a second, a quo warranto writ, my favorite Harry Potter spell now, quo warrantio. And it, It's great. I mean, it, and it's basically it's Latin for you're not the boss of me. Saying that you have no authority here, that you, you're wrongfully seated in your job. This writ is a common law thing that goes back to 1218, just after the Magna Carta.

0:34:07 Thomas: Quo warranto, yeah.

0:34:21 Thomas: Yeah.

0:34:21 Matt: This is ancient.

0:34:21 Thomas: 1218. Wow.

0:34:23 Matt: 1218. And it is ancient, and it was used all the time after the Magna Carta because they had all these sort of sheriffs who were freelancing and maybe weren't clearly appointed and weren't supposed to be doing some of the things they were doing, and you could bring this writ and have a judge decide whether the sheriff was properly appointed.

0:34:33 Thomas: Yeah. This feels so sovereign-citizen-y. This is, this gotta be the kind of thing that a sovereign citizen just absolutely loves, you know, oh, quo, quo.

0:34:41 Matt: Yes, it does. Yeah.

0:34:46 Thomas: What was it? Warranto or something? They've got their little wands. They're sovereign citizen wands, quo warranto. You, you, who, what gives you the right?

0:34:55 Matt: So is very strange. The Enforcement Act, which is also known as the first Ku Klux Klan Act, and it was one of the ways that Congress allowed the South basically to be reconstructed. It was part of the action to make sure that the people who were responsible for the Civil War did not continue to oppress the former slaves. Of course, one of the issues here is that there was such a mass amnesty and a lot of private bills as well, in which people who had actually participated in the Civil War for the Confederacy ended up back in power and ended up actually doing that. And the Reconstruction was badly frustrated because so many people were in power that did not want any of it to happen. Yeah,

0:34:56 Thomas: Okay, Yeah. Yep. Really tragic. It is one of the things that just, historically just speaking, I really was not aware of until I started, you know, becoming somewhat more well -read was Reconstruction really was a success for like a short period of time. Like there are black representative in government on the state level in states that you wouldn't believe, you Now, like there's a lot of states in the South where where it's like, wow, he or she is the first black senator or House member since 1870, whatever. And it was always confusing because like, wait, that's after slavery. So like there was a short time when Black people were able to gain a little bit of power. And then unfortunately, just whiteness prevailed in this country and racism prevailed, and they were able to just put a stop to it in a really tragic way.

0:35:29 Matt: Yeah, yeah, yeah.

0:36:07 Matt: Racial terrorism. I mean, that's what the Ku Klux Klan was. And voter suppression on a, you know, and the beginning of Jim Crow. It all happened during that time. Very important time to understand. This quo warranto action was authorized by the Enforcement Act in 1870. And it was used in a number of cases to disqualify people who are already in office. So the difference with quo warranto from what we're talking about is you have to already be seated in office. You have to have been elected.

0:36:28 Thomas: Mm-hmm.

0:36:29 Matt: And the thing, though, about this 1870 bill is that it was repealed in 1948, and nobody knows how or why. This actually came up even at the oral argument. John Roberts is like, just by the way, why was this repealed? Nobody knows. It was just a reorganization of the federal code, and it looks like they just dropped it out. It.

0:36:43 Thomas: Yeah. Yeah, I have been that they were really just thinking about this in terms of the like, well, that's over and everybody's been, you amnestied. So this wouldn't matter anymore.

0:36:49 Matt: Yeah. Never, well, who's going to need that again, right? Never going to happen. A couple of things about quo warranto there. There was a county commissioner in New Mexico who participated in January 6th for the Cowboys for Trump, and he was actually, the action was brought in the state, and he was actually disqualified under quo warranto as a common law writ, because it still exists as it has since 1218 in the United States, and you can still bring these things.

0:36:51 Thomas: Yeah.

0:37:11 Thomas: Question, though, the quo warranto, that's just like a mechanism to say, hey, you shouldn't be here. What's the reason he shouldn't be in power? You still need that, right? And with that, okay.

0:37:21 Matt: You have to show he's an insurrectionist in this case.

0:37:23 Thomas: And did they use, and was their justification the 14th Amendment Section 3 or was it something else?

0:37:23 Matt: Yeah, yeah. Really confusing thing about this case is the guy's name was also Griffin. So it's another Griffin. Yeah, they used quo warranto as the vehicle, as the writ to get into court to use Section Three to say that this Griffin should not be seated as county commissioner because he participated in January 6th.

0:37:41 Thomas: Griffin right here.

0:37:43 Matt: Right. Got to pick our Griffins carefully. That's interesting because it it was a state action, state judge that was upheld. That was really no question that they were allowed to do that. But of course, this is dancing around the problem here, which is that you'd have to have Donald Trump elected, sworn in, and then have someone bring a quorum into action, arguably under federal civil common law. And what judge is going to do? That is going to throw the president out of office after he's been elected on this. I mean, that's a really brave thing to do.

0:37:45 Thomas: Yeah. I That could happen. I could imagine that actually Yeah. And Then the supreme Court will say no.

0:38:11 Matt: Could happen if you get the right judge. I It's kind of a weird amicus brief that was filed by this guy, Ryan Binkley, who's kind of an outlier fringe presidential candidate. And he was making an argument that nobody else was, I thought was kind of interesting, that quo warranto was only authorized at the national level in D.C. So you'd have to actually bring that claim in D.C. And because they didn't do it, then you can't do it.

The point is that if they're going to pass an enforcement mechanism, like the Enforcement Act of 1870, they'd have to broaden it and they'd essentially have to have these preclearance things where you could file a lawsuit saying this person is not qualified and shouldn't be on the ballot rather than waiting for them to take office, because I think that would be a lot more effective.

So that's one way that it could still be enforced if that bill in Congress passes, which, again, for all the reasons we know, it probably wouldn't and this president wouldn't sign it if Trump were elected. So, yeah. I've been thinking through, what else? How else could you possibly do this,

0:39:03 Thomas: Yeah.

0:39:03 Matt: Right? Because right now, as it stands, it's impossible to actually enforce Section 3 after this decision. Think we agree on that.

0:39:03 Thomas: Yeah. That was a question I wanted to ask as part of my arguments. Does this mean that the Supreme Court just repealed part of the Constitution? Just was like, nah, that part of Constitution, that's unconstitutional. You can't do that. Because, how is this supposed to work?

0:39:22 Matt: I mean, they vitiated it. They effectively killed it. And of course, it is the usual thing. It's like, well, Congress could do this, but everybody knows Congress isn't going to do that. And how would that even work?

0:39:32 Thomas: I think it's at least important to say they could, though. Like I like so just really like for factual purposes, the Supreme Court said that the Congress would need to pass a bill doing what, designating him an insurrectionist or saying or just like literally enforcing the Constitution as though you need to like double all the language of the Constitution. That's why they had to pass bill to enforce the First Amendment, by the way. They're like, oh, we'll just copy that copy paste and enforce it. I find that absurd, but whatever.

0:39:35 Matt: Yeah, right, right. Well, no, in this case, you could do what the Enforcement Act of 1870 did, which is give federal prosecutors the right to bring a claim like that. The Department of Justice could bring it. Arguably, I think after looking into Cuorento, I think that citizens could actually bring it potentially in D.C. or otherwise under this common law writ, which still exists. I don't think they even necessarily need that enforcement mechanism. So that could be one way to do it. But again, that requires him to actually be seated to use that. So how do you actually get at the federal level a candidate disqualified by all the states? Right. That is the question. And you'd have to set up. I mean, I think you mentioned this before, but you'd essentially clear everybody and make sure that they're all qualified to run. We don't have anything like that. And the majority complains about how we're going to have a patchwork, but of course we already have a patchwork. It's a mess.

0:40:22 Thomas: Yeah.

0:40:44 Thomas: Let me ask you this, it's super easy and clear with the 35-year-old or not-citizen thing, but let's say we had a weird case where that wasn't so clear. I could imagine, I don't know, records lost in a fire, I don't know, something, where someone's like, yeah, I was born this year and certain such and such year. And they're like, well, I'm not sure. I don't think he was.

0:40:57 Matt: Well, we already had millions of Americans believe that the president wasn't born in the United States.

0:41:01 Thomas: Believe that Obama wasn't a citizen. Yeah, exactly.

0:41:03 Matt: See, as

0:41:03 Thomas: And what if the Republican version of that was actually true, where it's like, yeah, it's actually unclear. Was he born here? Or was he born? And just for the sake of argument, let's say it is a unclear question. Do you think should or would happen then?

0:41:16 Matt: As a lawyer, I have to tell you that there has to be some kind of due process and some kindof tribunal that examines this, Right? Because otherwise you're leaving it up to state decisions. I'm not really comfortable with that, so again,

0:41:19 Thomas: Sure. Yeah. But they did so with a trial. They gave him due process. Let's assume, like, I guess what I'm saying is we can all agree that this is a weird thing. Like, we can all agree this is weird thing, there's no obvious answer. I actually agree. There's no no obvious answer, but I think there are obvious not answers. And for To me, it's an obvious not answer that you just decide it doesn't exist. Like, I don't think you get to say, well, I guess this part of the constitution just doesn't exists anymore because we don't feel like it. I think that the, the, in my opinion, the best bad solution is that, yeah, actually this is how you do it.

If you are a state like Colorado or any other state, you can hold your own trial. Make sure to do due process. And you know, they make a lot of a big deal about, about, well, what about the different evidence standards they'd use? What about preponderance versus blah, blah, it's like, I get that, but I think you should absolutely have the right to appeal that to the Supreme court. If they didn't provide proper due process, you know, you would, I think would have to review it on a clear air standard maybe of like, all right. If, if some state again, up Joe Biden, he's an alien abetting enemy, and we aren't even going to hold a trial. We're just declaring it.

Hey, then appeal to Supreme Court and they can be like, hey, he didn't get due process here, or there was some clear error in the way they decided this. I think that seems to me to be the best of the bad options. I don't think it's great, but I think we already have variability. To go back to some of my arguments, the ballot for president varies by state. It's not uniform. This already exists for different reasons, probably less important reasons. I'll grant that.

0:41:50 Matt: It's too Weird. Hmm.

0:42:11 Matt: That's More about the parties and the way that they do it and how you get in the ballot, I think, but

0:42:59 Thomas: But, I guess, if the big fear is that state ballots will be different, they already are, is what I'm saying. Like, I think that so if your counterargument is like, yeah, but that's less about the state deciding. I don't know. Sometimes it is, isn't it, about certain requirements of states have different thresholds for like whether third parties can get on and all that kind of thing. That strikes me as very serious. That's, you know, again, consequentialist wise, maybe it's not as serious because that third party candidate isn't going to win. But I think just logically speaking, it's the same thing. It's not allowing the residents to vote on a given candidate for different reasons, varying depending on the state you're in. And I think that just is the best of a bad bad set of options.

0:43:06 Matt: Sure.

0:43:19 Matt: No.

0:43:39 Matt: That that's kind of where I've landed on this, um, I really don't want to have to have the person get elected and then try to remove him. That seems pretty bad. I think that either the the congressional thing of rejecting the certification or John Roberts just refusing to swear him in are both not great options either. I do think that just having, you know, the states do this, again, I do understand the argument that I'm

0:43:57 Thomas: Have I convinced you? I thought you came in saying you thought the decision was right.

0:44:01 Matt: I'm saying if you're going to find a way to do this. That's that's I agree. That's the way to do it. Still, unfortunately, I have to stay on the side for the moment of the states can't disqualify federal elect candidates. It's um, so hard for me because I don't, I want them to, I badly want them to in this case, well.

0:44:02 Thomas: Oh, okay. Okay.

0:44:14 Thomas: Someone I try to have Phoebe run for president they and are clearly not of age, what is that process? What happens?

0:44:25 Matt: Bring a challenge to the Secretary of State, I believe, can be an executive decision because she's, I don't know how old she is, eight.

0:44:30 Thomas: Somehow it's federally decided in a way that makes more sense than this, or is it just because of the, it's such a clear question in your mind? Biden, I believe, was elected senator when he was 29, and he was, was going to be 30 by the time he would be sworn in. And I think that's an interesting case.

0:44:48 Matt: Came up.

0:44:49 Thomas: It came up. There's like different kind might Some argue, well, he's 29. He can't be even on the ballot. I think there is some genuine, you know, I don't think it's super clear there. But again, I do not see a better option than the Secretary of State who is in charge of running elections. There are so many ways. We have not even pointed out the hypocrisy of how when it comes to voting rights, all of a sudden, completely different story. Right, Matt? When it comes to the 14th Amendment and ensuring voting rights, then states can do whatever the hell they want. Can restrict voting and make it as hard for black people as they want, and to John Roberts, well, the federal government can't do anything about that. Sorry.

0:45:22 Matt: Because racism is over. Yeah, that is what they found in that case not so long ago. And that actually was decided because of Section 5, right? Now, that's another interesting interplay here, because Section 5 says that Congress has the right to enforce anything in this amendment. And the, is that this is one of those things that requires Congress to enforce it versus some other things that might be more clear. It's a mess.

0:45:44 Matt: I don't know, honestly. I know that Section 5 has been ignored or not respected by the Supreme Court in other respects, including in voting cases, I believe. So all made up, as always.

0:45:23 Thomas: Yeah. Hmm. Yeah, so Let's settle where we are then. I've thrown a lot of arguments at you, thanks for being a good sport. Clarified at least the decision and why they did the way they did? I feel like we mostly covered that, but just in case, let

0:46:07 Matt: Know, essentially at the end of the day, they found it's not self -executing and that Congress has to do it. The majority did. And I agree with the concurrence in this for the most part, the way they came down and said that they went too far, that they're closing the door on any other possibility of any other way of doing this. And this is going to be a real problem. Know, I think that that's correct.

0:46:21 Thomas: Let Ask you this, let's say it was just the 9-0 part, let's say we didn't get that five asshole concurrence, how do, would you, it have worked then? Like how is it supposed to work under that logic? What precisely was that decision? It was just the state can't do it.

0:46:38 Matt: The first three pages of the minority decision, they say that they, it's just a flat out, that there's no history of states doing this. It's never happened before. And it can't happen now that you can't have states disqualifying federal election candidates. That's it. And the concurrence says, we agree with that. We would have stopped there. Could have been a three -page decision.

0:46:48 Thomas: Yes. So I'm Just asking you, what, what do you think that would have meant then? Like what would have been our path? Let's say it only was that, then would have, I'm just curious, what then would have been the path to like disqualifying an insurrectionist? Is

0:46:54 Matt: Yeah.

0:47:04 Matt: I don't know. I don't think the concurrence knows. I think they would have just left it open. You know, so Amy Coney Barrett had another sort of concurrence. It's not exactly a concurrence she's mostly just kind of, yeah, just lecturing everybody.

0:47:10 Thomas: It's the worst. Lecturing the other women

0:47:13 Matt: Yeah telling them what they they said something about amplifying disagreement with stridency, which aiming at the other women on the court is, I don't know, you can make your own judgments about that.

0:47:13 Thomas: On the court. Yeah. It's The stupidest thing. Unreal. Yeah.

0:47:24 Matt: But she has this whole kind of like tsk-tsk about how we're just turning up the heat and we're making everything harder in a difficult election year. And here's the important part. She says, "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." It's not. I think the message that we take home is that the majority believes that there's one way to do this. And there's a bunch of people who believe that there isn't the right way to doing this. So I don't know.

0:47:52 Thomas: Yeah.

0:47:52 Matt: More or less, I think that it makes sense a trial in this way, but maybe a federal trial. Maybe there's way to take this to a federal district court and have it decided that way rather than having a state court do it. Certainly one of the many ways that this could go. I've been thinking for days about what the alternatives are and how this could work. And as with everything else in this case, there are no clear answers and there's no clear path.

0:48:01 Thomas: Interesting.

0:48:13 Thomas: I agree I with that. I think what has made me feel so crazy is it's not just that, like, oh, this is unclear. What do we do? It's that the oral arguments, as I as I open this with the takes the entire world after that was like, well, this is pretty clear. They're going to rule that he can stand.

And I agree like that was pretty clear and I am losing my mind over the fact that the liberals on the court, especially I also I got to call out a KBJ because I think seemed to me very certain that this was the right decision.

I know she didn't sign on to the five justice thing, but I don't understand the point of my question of how should this work, even if it was just the 9-0 part of it, is that even then you're like, I don't know. I don't know how it should work. And to my mind, that tells me like, OK, well, then maybe that's not obviously the right decision. The obvious right decision to everybody, apparently on the court, including liberals, is, yeah, they shouldn't be able to do this.

And the question is well then how how can how can anyone enforce this part of the Constitution of the United States and the answer is no I have no idea then maybe that's not so obvious like I think it it is a very unclear question and I absolutely think I'm still of the opinion that the way Colorado did it is seem any worse than any of the other bad options to me that's

0:48:13 Matt: No, It's the one with the most due process. And remember that Ketanji Brown Jackson is an expert on the Reconstruction era and Reconstruction amendments. I think it was her dissertation.

0:49:34 Thomas: What makes it so frustrating I don't get it

0:49:37 Matt: And she was coming in that vein. That was how she was was approaching all of this. And she was very, in a very modest sort of way, but making it very clear that she was the expert in the history on this and they weren't. But at one point she asked a question as wrote this down, why did the framers design a system that would cause this much disuniformity? It would be strange to allow Congress to rip the heart out of Section Three by never passing an enforcement mechanism. That's, was, she answered her own question.

0:50:02 Matt: So she's clearly saying that she doesn't think it's just up to Congress, but she doesn't have an answer either. But again, part of being a Supreme Court justice is answering the question in front of you. And the question before them was, was Trump erroneously excluded from the ballot? That's all they were asked. They weren't even asked, was Trump an insurrectionist? The response to the petition for cert actually laid out six more questions that they wanted to answer. And it's up to the Supreme Court to decide which questions they want to take, but they did want to touch anywhere near the actual question of whether it's insurrectionist or not.

0:49:39 Thomas: Yeah yeah yeah right well That's important to make clear and this the ordinary course of business let's pretend it's not about this but it's about you'd be obviously better coming up with an equivalent but something where the Supreme Court is reviewing a state decision, what's the level of deference that the Supreme Court should be giving to that decision? Like, should they be only reviewing, you know, the technicalities of it or should they be doing like the fact finding part themselves and redetermining for themselves? Like, hey, was this guy an insurrectionist? Or if you want to insert equivalent thingy, you know, like how is that normally supposed to work?

0:51:06 Matt: Obviously they have power when a state is interpreting the federal constitution, they have the ultimate say on that. But when it comes down to reviewing this particular process, which was unprecedented, there's never been a trial like this before. And out of that by saying in this case, well, the parties agree that the the trial was basically not flawed. There There was no serious argument that there was anything wrong with what happened in the trial. But I think it was Roberts that sort of left the door open and said, well, what if there was a trial where it was just totally haphazard and there's all kinds of hearsay and all kinds of other trouble came in? How would we review that at that case? That's an open question about how they would even review it, whether it be clear error or whatever else, I think.

0:51:41 Thomas: So like what standard, you say how, but what standard by which they reviewed, right? The fact that they could review it doesn't seems pretty clear, right, that they Could review it somehow.

0:51:42 Matt: Yeah. Right. Exactly. Yes. The actual legal standard. And they acknowledge that. That.

0:51:51 Thomas: But I just wanted to cover like a basic law thingy, which is, or in the ordinary course of business, don't you usually have to give deference to like the lower courts and on findings of fact, like, you know, what is that principle? That's something, right. Right. You're not supposed to like re -litigate, Court doesn't call like their own expert witnesses to like redo stuff usually. Right.

0:51:53 Matt: Yep.

0:52:09 Matt: Usually. They have to review the facts for clear error. There are some things that have original jurisdiction in the Supreme Court. There are a couple of things between states where the Supreme court is actually the first fact finder. But clear is the universal standard for these kinds of things. And that would make sense here. If the judge just lost lost their mind and just included all kinds of...

0:52:12 Thomas: Clear error. Right, right. And said Biden was an insurrectionist, for example. Yeah, that's why I think this works fine. I'm not scared of that counter argument.

0:52:27 Matt: Yeah, right, right. Exactly. Sure. You can imagine the chaos and the mess this would cause during an election year if you have even five or 10 states that are all trying to do this, and they have to review all of it. But yeah, I agree. That's not necessarily a strong reason against it, consequentially. Maybe you might be starting to bring me around. I don't know.

0:52:35 Thomas: Yeah, the very least.

0:52:47 Matt: No.

0:52:47 Thomas: Yeah, hope someone can acknowledge, I'll ask you, can you acknowledge that the main reasons for keeping Trump on the ballot are consequentialist in nature? Like the main reason seemed to be, well, you don't really want, you know, that'd be chaos if, this you and that and the other. And that is just not at all how the Supreme Court, this Supreme Court is originalist Supreme Court normally does stuff. Right.

0:53:11 Matt: Famously, they often say that we're not going to look at what kind of floodgates this opens. This is the right thing to do. That is very often their position on a lot of things. Arguably what they were doing, and yes, I think that they were thinking that way, but arguably what They were doing was saying, just as a clear, bright line thing, that the states can't make these kinds of decisions in federal elections. Just constitutionally, that states don't have that authority. That's the argument.

0:53:32 Thomas: I, I, I believe it leads to absurd conclusions. Like, like, for example, the contradictory nature of what Congress can do now based on the language of Section Three to me seems more absurd than going the other way, but there you go. Well, is there anything else we want to cover? Uh I appreciate you being a good sport and accepting my extreme, uh, anger at the irritation at this decision.

0:53:45 Matt: Yeah. I share it. And maybe I have a little too much lawyer brain going on here, it's very possible, and I think it's important to bring the non-lawyer brain in, because again, just looking at the question presented and the law, it makes sense the conclusion they reached. I, as a citizen and as somebody who does not want to see Donald Trump hold office for any number of reasons, very much wish it went the other way and there was some way that they could have unanimously decided the other way. But so you asked before what I would do if I were on the Supreme Court, and I was thinking some more about it. And I think that I'd go with Bush v. Gore, as strange as that sounds, as bad as that decision was, because this is kind of that. Is It very much kind of just doing what they're doing. And you might remember Bush v Gore was a one -time decision.

0:54:24 Thomas: Well, this is kind of that. They did. Yep.

0:54:32 Matt: They made it very clear in that decision that they said, these are unusual circumstances, election law is complex, but we're just going to pull the trigger on this one.

0:54:37 Thomas: Look, every court gets to steal one election for free. This is our one.

0:54:41 Matt: Exactly. There you go. Yep. And I think makes sense to me because they have findings in front of them and everybody saw what Trump did. It doesn't need to be convicted necessarily, but he did it in public and we have a recording of him trying to find the votes in Georgia and all that. So just say out loud, because that was the thing I really wanted to see in this decision, was for them to acknowledge what he did. Just say that he did commit an insurrection. This is a totally unique, one -time, one off situation. But we're going to find no matter what the circumstances, he can't be on the ballot because this is it. And I think one way or another, they could have gotten to that result. And that is my take, I think, at the end of the day. There's got to be some way that we can come around on this.

0:55:21 Thomas: What? Which way? What do you mean?

0:55:25 Matt: Well, thing is, as a lawyer, I have to agree with the conclusion that federalism prevents this from kind of the way that it is right now. But as a person and as somebody who thinks that Bush v. Gord was wrongly decided, but I think that we just maybe get a free one, like you said, our consideration is limited to the present circumstances for the problem of equal protection in election processes generally presents many complexities.

0:55:39 Thomas: Hmm, yeah. Hmm. Oh, yeah.

0:55:49 Matt: That's what

0:55:49 Thomas: And then we say, how do you like it?

0:55:50 Matt: They said. Good. Yeah, that's right. Feels pretty good, right? Yeah, no. Because at the end of the day, they can do whatever they want to do. They can find that he's an interactionist, and they can find the Section 3 applies if they want too, and they should have.

0:55:54 Thomas: Yeah, Could they have just said, yeah, he's off all the ballots, all of them, in the entire land?

0:56:06 Matt: Yep. Just this one time. And if you bring this again, we're probably not going to look at it unless it's something very similar.

0:56:10 Thomas: If unless there's another insurrection or another inspectionist Yeah, well, there you go, oh,

0:56:12 Matt: Yeah. Actual thing that happens in front of all of us, but you know, at the, yeah, I think that's, that's the best I can do. You know, Jack Smith could have charged him with a federal criminal charge of insurrection, which exists, and that, one of the things that carries is disqualification. That could have happened, but we're not in that situation.

0:56:19 Thomas: Through

0:56:29 Matt: Yeah, through the actual 18 USC 2383, that actually, the sentence includes up to 10 years and disqualification for a future office. Didn't choose to charge him that way. We can't have that happen now. So as long as it's in front of the court, if I'm on the court, that's what I'm going to do, because I cannot allow this person back in the ballot.

0:56:28 Thomas: A different Uh, it's not through this okay, yeah, hmm, and If you're on the court, that's a good sign that we somehow have packed it or something. No offense to you, but I feel like you're not, it's, I promise I don't mean any offense, I feel like you're not in the top, like, like three picks for next justice. I hope that's not offensive.

0:56:59 Matt: I can't believe you're recording a podcast with somebody who's not Supreme Court material. Wow. What a disgrace.

0:57:04 Thomas: Yeah, I but I'm sure you're in the top couple hundred thousand, right? So if we pack the court that much, there, we go, might as well just make it democracy.

0:57:10 Matt: At least, yeah. Well, hey, let's pack the court with 100 ,000 people at this point. Just make it irrelevant. Let's do it.

0:57:18 Thomas: Yeah, it's all everybody's on the court now. All right.

0:57:19 Matt: Yeah. Yep. Everybody gets a rotation. You don't have to to be a lawyer, it's fine.

0:57:23 Thomas: Well, I'm not taking it as a win in the debate because I still think that it was totally fine to decide the other way without a Bush v. Gore nonsense, but I'll I'll take what I can get. I appreciate this movement on it, I guess. Yeah.

0:57:32 Matt: Sure. It's the best I can do, is, a it's fun, this is different kind of a format, where we're actually having argument. I think it's good once in a while to have an argument, and opening arguments, nothing wrong with that, um, happy to argue with you again anytime.

0:57:38 Thomas: Yeah. Want to thank you again for being a good sport and folks, this is not the intended regular format of the show. I, this is, but I think once in a while, I think it is good to like have this kind of argument. Cause I just can't, it result seems clearly wrong to me. And I just, and I couldn't contain it. And so for one episode, we did something a little different, but don't worry. We can go right back to the usual format with Monday's Deep Dive, I'm sure.

0:57:54 Matt: Yeah, and I appreciate your non-lawyer brain, and you're very clear, and, uh, you know, the moral imperative that you bring to this, I

0:58:14 Thomas: It's just because we're all textualists now, Matt. You know, it'S so clear. I just go by the text of what the thing says. Okay.

0:58:21 Matt: And unfortunately, no good lawyer can, is allowed to say the law clearly says, because it never clearly says. So that's always gonna be my position, unfortunately. But

0:58:25 Thomas: Yeah. Fair enough. Right, well, thanks so much for listening, folks. Really appreciate you listening, for real. And so many exciting things coming at Opening Arguments. Please support the show at patreon.com/law, if you haven't already. Where bonus stuff will be coming a Patreon near you. So thanks so much for listening. We'll see you on Monday.

0:58:45 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:59:02 Matt: Will say, generally, no, I don't think I will. Stay hold.