Jurisprudence Watch

What ‘Is’ Is

Thoughts (including ChatGPT4’s) on the 9–0 SCOTUS decision re Trump on Colorado ballot

BLUF: Can’t argue with a unanimous decision, and there’s something fairly obvious about the federalism aspect, that a ruling for Colorado would create a “chaotic patchwork”, the last thing a nation teetering on the brink of schism needs. Buried in the opinion, though, SCOTUS stated flatly the way to keep an insurrectionist off the ballot: 18 U.S. Code § 2383.

(Also to clarify my bias up front, I think it’s almost self-evident that Trump “incite[d], set on foot, assist[ed] […] an insurrection […] against the authority of the United States” and is therefore “incapable of holding any office under the United States”, the express text of the simple one sentence § 2383. Yes, I know lawyers chuckle when they hear “almost self-evident” … bill those hours.)

It’s not everyone’s dish, but reading the full opinions of important SCOTUS decisions is a nerd habit of mine. After plowing through the 20 pages of Trump v. Anderson, I come away thinking “much ado about nothing” and the court got it right.

So what took so long? This issue could have been settled three years ago, in March of 2021, a month after the change of administration. Both aspects: (a) who gets to make the call (aka decision rights/powers), the federalism aspect, and (b) whether the law just referenced that Congress passed applies.

Per the BLUF above, it’s always been roughly self-evident that this matter can’t be addressed at the state level in our federal model. The liberal justices, in their concurring opinion were succinct:

Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles. That is enough to resolve this case.

Duh.

If you step back for a second and look at the matter through the lenses of constitutions-as-systems and Tranquility, the bug is the delay and so risk of denying justice, given the structural flaws of Ye Olde Parchment most germane here: a unitary executive (where POTUS is the boss of a non-independent Attorney General … if that needs stressing) wielding the pardon power.

“Checks and balances” is a nice abstract notion, but it’s toothless in the presence of all three Article branches stocked with Nietzschean master-morality politicos.

Which brings us back to the matter of § 2383. I don’t agree with the three liberal justices that anything in the main decision in and of itself “insulate[s] all alleged insurrectionists from future challenges to their holding federal office”.

Sure, some of the greatest legal minds have not and do not agree on the basic systemic question of when language in the Constitution is “self-executing”. (The New York City Bar published an excellent and balanced report back in September 2022.)

Putting that debate aside, SCOTUS ruled that the XIVth Amendment’s Sections 3 and 5 require Congress to pass laws spelling out how to implement/enforce the disqualification provision. Fair enough. They even point out the history of such laws, and the fact that § 2383 remains on the books.

(That its language couldn’t be plainer is my opinion, and I realize that lawyers can argue over what ‘is’ is. Hold that thought.)

So why didn’t Merrick Garland appoint a Special Counsel the day he was sworn in, on March 11, 2021? The facts were fresh. Even MAGA lickspittles like “Lady Lindsey” Graham and Kevin McCarthy “had had enough”. Why did the system not work?

A: power politics.

Since I confess I’m baffled by this failure, having now dug into the issue, I decided to consult the AI oracle of our time, ChatGPT 4. (Full transcript link here.) Basing part of its reasoning on a Yahoo article, the artificial mind concludes:

Notably, Smith did not charge Trump with incitement of insurrection. Legal experts suggest that such a charge could have complicated the case and been harder to prove than the broader conspiracy charges. They indicate that relying on Trump’s speech the day of the Capitol riot to prove incitement could have introduced potentially tricky First Amendment issues, which would have been time-consuming and distracting. Instead, the charge of “conspiracy against rights,” which prohibits trying to deprive someone of their right to vote, serves as a more straightforward stand-in for an insurrection charge​.

I get the pragmatics of it, but I don’t find that reasoning very compelling¹. Surely putting the process in motion (with power of AND … you can always drop charges) right at the beginning of the four years of the present Biden administration term in office, with ample time to hash through all the tricky complications, would have been a better decision than waiting until after the mid-term election of 2022, with a compressed calendar. (Jack Smith was appointed on November 18 of that year.)

Modulo, of course, the politics. That election flipping the Senate back blue (sort of).

Who suffers most from all this delay, legal philosophy (aka jurisprudence) and political calculus and scheming?

A: “We the people”

Any system of “justice” that allows a chronic pattern of running out the clock by the same party is buggy on its face.

It is one of my main themes that Ye Olde Parchment, venerable and awesome as it was and is, much like both parties’ standard bearers (in their nearly opposite ways), is no longer fit for purpose. One of its quaint anachronisms that ought to get more attention in the thinking classes is that it’s based on common law, a leftover of the British Empire.

Quick, squint at this map. Is there any country on there that we admire as having achieved more of the aims stated in our Constitution’s Preamble — (with the exception of Canada) — that runs on common law?

Space does not permit a deep dive into the comparison and contrasting pros and cons of the common v. civil law concepts. It boils down to the degree of interpretation, whether “the law” is an ever evolving corpus of precedents based on judges’ opinions, guided by actual codes, or is the actual codes themselves.

What ‘is’ is.

I’m happy to debate that one of the root causes of our nation’s inability ever to reach the state of Tranquil Union is that the Article III branch is in practice just another political one, albeit with a highly indirect, non-democratic process for selecting the deciders. This contra the SCOTUS propaganda about itself:

And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process.

[…]

In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own application “would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”

I submit as modern counter-example Exhibit A, all 86 pages of the Constitution of Switzerland, our “Sister Republic”. Prolix it may be, but if constitutions and laws are essentially recipes for collective success, the proof is in the pudding. Is there anyone in the Despair bottom half+ of our citizenry that wouldn’t swap with their peer in Basel, Zurich or Geneva?

Let’s not even start on the Nordics, or perhaps more broadly the Enlightenment parts of the EU.

We’ll return to the sisters in subsequent articles. For now the point is that Law should be clear enough not to require much taste/opinion, which is the blunt way of saying “interpretation”. Introducing too much opinioneering is the fast route to perpetuating political strife … issues that never settle.

I do not dispute that in our system Chief Justice Marshall’s famous dictum from Marbury v. Madison shown in the image at the top of this article, establishing the principle of judicial review, is what is.

I do dispute that it’s what ought to be.

Progress and modernity concur. Trump is the stress test. I’ll be delighted to be proven wrong.

Notes:

[1] Compelling or not is subjective. You have to be impressed, though, with this AI’s answers. Call me a dreamer, but I’m optimistic about the potential for this generation of AI to improve our legal system. I’d like to see an analysis of the economic drag resulting from sloppy practice of the law. Shakespeare had it about right, interpretation of the Bard’s famous line notwithstanding.

Computers certainly have better memories than humans, can (now) understand meaning of natural languages better, and are fundamentally logic engines, free of human cognitive biases, with superior inference/reasoning capability.

What else does Law require?