Substacks
March 4, 2024 Heather Cox Richardson

Today the Supreme Court ruled unanimously that states cannot remove Donald Trump from the 2024 presidential ballot. Colorado officials, as well as officials from other states, had challenged Trump’s ability to run for the presidency, noting that the third section of the Fourteenth Amendment prohibits those who have engaged in insurrection after taking an oath to support the Constitution from holding office. The court concluded that the Fourteenth Amendment leaves the question of enforcing the Fourteenth Amendment up to Congress.
But the court didn’t stop there. It sidestepped the question of whether the events of January 6, 2021, were an insurrection, declining to reverse Colorado’s finding that Trump was an insurrectionist.
In those decisions, the court was unanimous.
But then five of the justices cast themselves off from the other four. Those five went on to “decide novel constitutional questions to insulate this Court and petitioner from future controversy,” as the three dissenting liberal judges put it. The five described what they believed could disqualify from office someone who had participated in an insurrection: a specific type of legislation.
Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson in one concurrence, and Justice Amy Coney Barrett in another, note that the majority went beyond what was necessary in this expansion of its decision. “By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office,” Kagan, Sotomayor, and Jackson wrote. Seeming to criticize those three of her colleagues as much as the majority, Barrett wrote: “This is not the time to amplify disagreement with stridency…. [W]ritings on the Court should turn the national temperature down, not up.”
Conservative judge J. Michael Luttig wrote that “in the course of unnecessarily deciding all of these questions when they were not even presented by the case, the five-Justice majority effectively decided not only that the former president will never be subject to disqualification, but that no person who ever engages in an insurrection against the Constitution of the United States in the future will be disqualified under the Fourteenth Amendment’s Disqualification Clause.”
Justice Clarence Thomas, whose wife, Ginni, participated in the attempt to overturn the results of the 2020 presidential election, notably did not recuse himself from participating in the case.
There is, perhaps, a larger story behind the majority’s musings on future congressional actions. Its decision to go beyond what was required to decide a specific question and suggest the boundaries of future legislation pushed it from judicial review into the realm of lawmaking.
For years now, Republicans, especially Republican senators who have turned the previously rarely-used filibuster into a common tool, have stopped Congress from making laws and have instead thrown decision-making to the courts.
Two days ago, in Slate, legal analyst Mark Joseph Stern noted that when Mitch McConnell (R-KY) was Senate majority leader, he “realized you don’t need to win elections to enact Republican policy. You don’t need to change hearts and minds. You don’t need to push ballot initiatives or win over the views of the people. All you have to do is stack the courts. You only need 51 votes in the Senate to stack the courts with far-right partisan activists…[a]nd they will enact Republican policies under the guise of judicial review, policies that could never pass through the democratic process. And those policies will be bulletproof, because they will be called ‘law.’”
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Notes:
https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf
https://talkingpointsmemo.com/news/scotus-rules-constitutions-dq-clause-cant-keep-trump-off-ballot
https://slate.com/news-and-politics/2024/03/mitch-mcconnell-retire-trump-federal-judiciary.html
Twitter (X):
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judgeluttig/status/1764781742563480006
NormEisen/status/1764692656783802767
steve_vladeck/status/1764669055989063836
neal_katyal/status/1764674263737364769
Substacks
It Pays to Be a Friend of Donald Trump Joe Nocera

Two dodgy Democrats had a great day on Monday—thanks to our new Republican president, Donald J. Trump.
The first, former Illinois governor Rod Blagojevich, was granted a full pardon. Back in 2009, after he’d been charged with corruption, Blagojevich got himself booked on Trump’s show, Celebrity Apprentice. (You can see his appearance in these YouTube clips. He was fired, of course.) I don’t know if Blagojevich had a premonition that Trump might someday be in a position to help him, but it sure has turned out that way. Transforming himself from a high-profile Democratic governor to a big-time Trump supporter was the single best move he could have made.
Substacks
Stop Making Cents? Charles Lane

On Sunday, President Donald Trump announced that he has ordered his administration to cease production of the penny. The argument for the move seems straightforward enough. It costs more than a penny to make a penny (3.7 cents, according to the U.S. Mint). Given inflation and the move to digital payments, ditching the coin is just common cents, right?
Not necessarily. Life’s about more than just making the numbers add up, and amid all the government waste, doesn’t the humble penny deserve a carve out for sentimental reasons?
Today, we debate the penny’s fate. Good riddance or gone too soon? Deputy Editor Charles Lane supports Trump’s move. Consulting Editor Jonathan Rosen opposes it. Have at it, gentleman.
Charles Lane: President Trump’s decision to end production of the penny has my total support. This mite of a coin betrayed me, quite directly and personally, over the course of 13 years.
“Save your pennies, Chuck,” a supervisor at work told me in 2002, responding to some angst I expressed about future college tuition costs. This was her way of not getting the hint that I needed a raise.
Attitudinally positive as always, I took her advice. I told my 5-year-old son that we would henceforth be keeping every one-cent coin we received as change, found on the street, or won playing dreidel until the moment he left for college.
What a father-son project! So rich in lessons about thrift, consistency, and long-term thinking! And so we collected and collected, filling first one large glass jug and then another, until July 2015, when it was time for the big reveal: We had accumulated 10,142 pennies, about 2.19 per day.
They were worth $101.42, not even enough to cover a month’s fraternity dues.
Wrapping the little suckers in paper rolls to enable deposit at a bank took me several days. Valued at the federal minimum wage of $7.25 per hour, the time wasted offset any wealth embodied in our hoard—with change left over.
So I did not need the DOGE to tell me the government lost over $179 million in fiscal year 2023 minting more than 4.5 billion one-cent pieces at a cost of three-plus cents each. I already knew that a penny is much more trouble than it’s worth.
Substacks
Nellie Bowles: The Triumph of the Plastic Straw Nellie Bowles

The biggest environmentalist craze of my generation started in 2011 with Vermont 9-year-old Milo Cress cooking up an arbitrary number for how many plastic straws Americans used daily. This 9-year-old figured it was so many. He says he called up straw manufacturers and calculated 500 million a day. Boom, big number, good number. The mainstream media was off to the races. That 500 million a day number was cited in The New York Times, The Wall Street Journal, and The Washington Post. Suddenly the most important thing we could do for the environment—for our children!—was ban plastic straws.
States and cities passed laws against them. California banned them from restaurants outright in 2018. New York, in 2021, changed the law so the only straws on display were paper (you were allowed to ask for plastic). Official fact sheets from Ron DeSantis’s state of Florida instruct Floridians to “Skip the Straw,” citing the 500 million figure. Did anyone question the basis of this?
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