Author: jamesgillen@yahoo.com

Supreme Court Chief Justice Samuel Alito has had a rough month.

On May 16, the New York Times published an article detailing how in January 2021, an upside down US flag was flown at the household of Alito and his wife, in the wake of a pro-Donald Trump attack on the US Capitol to stop the confirmation of the Electoral College vote, an attack in which several protestors carried not only white nationalist flags and Confederate flags but the upside down US flag. This week another NYT article detailed how one of Alito’s other homes had flown an “Appeal to Heaven” or Pine Tree Flag during the summer of 2023, a flag that is also used by Christian nationalists and is presented outside the office of current House Speaker Mike Johnson (BR.- Moscow Oblast).

Now the upside-down flag, like the Gadsden Flag, was in past times used by left-wing Vietnam-era protestors, not to mention libertarians, but nowadays they have been co-opted by the “freedom lovers” who think that slavery is okay as long as it’s to Trump, or Putin.

More immediately, Alito, and the rest of the conservatives on the Court, continued to show a consistent pattern this week with the Thursday decision on Alexander vs. South Carolina State Conference of the NAACP, ruling in favor of the South Carolina government’s redistricting of state territory to dilute black majority neighborhood votes and increase the Republican majority in coastal districts. Alito, who wrote the opinion, stated that the lower court ruling that “race predominated in the design of District I in the Enacted Plan was clearly erroneous” and that in keeping with prior decisions, even if partisan gerrymandering violates the Constitution, it presents political questions beyond the federal court system to decide, and since this is (apparently) not a race-based gerrymander, the Supreme Court cannot interfere.

Begging the question, why is that any more fair or why there should be any mandate to restrict the votes of any community, racially comprised or not. It would be just as arbitrary to restrict the votes of a white community composed of Masons, Seventh-Day Adventists or Star Trek fans, and I’m sure that if such a case ever went to the courts, judges would dismiss it as ridiculous. But when it comes to restricting the votes of one of our only two “real” parties, and one that happens to be the predominant choice of a racial minority, somehow that’s okay.

And Clarence Thomas, as he does, went on to say the quiet part really loud. In his concurrence Thomas went farther than Alito, who seemed at pains to disassociate the abstraction of the legislation from its racial impact, to say that Brown vs. Board of Education was “a boundless view of equitable remedies” and ought to be reviewed.

As I said earlier, “In the Dobbs case, Justice Samuel Alito decided that the Fourteenth Amendment due process standard did not apply in the case of abortion and that there had been no legal precedents or language in the original Constitution allowing it. Now, while many right-wingers have objected that the result of Roe v. Wade created a federal standard when the abortion issue should have been left to the states, Alito’s position blanks out the point that we had a Fourteenth Amendment in the first place because we already tried leaving the issue of slavery up to the states and that didn’t work out. Which brings up the relevant point that if the Reconstruction Amendments were meant to correct an institutional racism that had more precedent in American law than the standard going forward, and Alito has decided that these amendments do not apply to women because there was no previous historical standard protecting abortion rights, then there’s all kinds of things they don’t have to apply to.”

It would be one thing if the Alito Court were cutting away New Deal precedents and “penumbras” of a “living document” that aren’t actually stated in legislation or constitutional amendments, but as we can see in Dobbs and several other cases (including the 14^th Amendment question of whether an insurrectionist can run for president or whether a president can be made immune to any prosecution, despite all precedent), SCOTUS is ignoring not only the spirit but the actual words of the laws. And not laws from FDR or LBJ eras, but laws created in the 19^th Century. Back when the anti-slavery party was Republican.

That leads into the whole matter of creating presidential immunity, and one would think that even Thomas and Alito wouldn’t create a presidency that is effectively above them and would make their own jobs obsolete, but Alito in particular seems besotted with the idea that the laws don’t count if they go against Trump. What small costs are dignity, independence and the protection of laws compared to the chance to serve at the feet of our eternal Lord and Master, and bask in the radiance of His supernaturally bronze skin?

The real problem is that with a president or legislator you could try to correct such malfeasance by kicking them out of office, but you can’t do that with a Supreme Court Justice, and the contempt of Alito in his recent behavior is that he is acting precisely in awareness of this. This is why every other major office in the Constitution is subject to election and even local judges are normally elected by the public in limited terms, as opposed to being a monarchy or College of Cardinals. But, we have decided that such a judiciary is necessary in order to be above partisanship. The problem arises when the justices are appointed by partisan politicians to serve partisan ends and Republicans in particular start court processes in preference to their own legislation because they aren’t subject to popular vote.

That being the case Democrats are weighing their options. Thomas and Alito are not going to recuse themselves on anything, and given that the Charleston decision was 6 votes against three liberal dissents, it wouldn’t matter if only the two most obviously corrupt justices were taken out. It has been suggested in the wake of Alito’s partisanship that at least one house of Congress call the justices for testimony on their decisions, apparently on the assumption that the liberals will do so even if the conservatives refuse. That’s a good idea, but I have an idea that’s a little more… provocative.

Recently I also said that we need to call Trump’s – and Alito’s – bluff on the matter of presidential immunity. “Common sense (which granted seems to be in short supply at the Alito Court) indicates that the ruling doesn’t apply to just Trump. Ask these people if all these hypotheticals they are blithely discussing would apply in the abstract to Joe Biden. … Could Joe Biden, the day after presidential immunity was created by SCOTUS, then immediately declare Dobbs v. Mississippi to be null and void and sign an executive order making the previous Roe v. Wade standard nationwide again?”

Why wait?

I think President Biden should sign an executive order now to do what his party is talking about and federalize the provisions of Roe v. Wade, specifically that abortion is legal up to the point of “quickening” or fetal viability, and have that enforced nationwide by the Justice Department.

Because for one thing, that would oblige the Alito Court to make a decision.

As I also said: “Because even if nobody in this case is arguing that the President’s authority allows him to destroy the balance of powers and nullify a SCOTUS ruling, what would THEY be able to do about it, if they themselves have declared that anything the president does cannot be prosecuted (short of impeachment and removal from office, which would require a two-thirds vote of the Senate, including Democrats, meaning, IT’S NEVER GOING TO HAPPEN), just as long as he says the two magic words “official act“, which will strike him with a lightning bolt and give him superpowers?”

That is in fact the situation right now. If, even prior to Alito ruling in favor of Trump’s position (which of course he is not going to unless the election ends up in Trump’s favor) the current president takes a pen and wipes out Alito’s (and Trump’s) main judicial legacy, what alternative is there except to press an impeachment? I’m sure that Johnson’s House would be glad to do so as everyone forgets for a moment how much they all hate Marjorie Taylor, Matt Gaetz and Mike Johnson. But again, impeachment is never going to work because it requires two-thirds of the Senate to convict, it is currently 51-49 Democrat, and that means Republicans would need to pull away 18 Democrats – over one-third of the delegation – to vote against their President on an issue that they have been wedded to ever since Dobbs.

What other way would there be except to rule that the President IS subject to law and there ARE other legal means to stop him from going too far?

And let me be clear: That WOULD be going too far. To act directly against a Court ruling would not only be to overrule the prerogatives of the judiciary but the prerogatives of the legislature, which as conservatives have told us should have made the standard on federal abortion rights in the first place, as opposed to SCOTUS “legislating from the bench” in Roe. That is for one thing why Democrats are talking about creating federal legislation to that effect as opposed to going to a Court that is not theirs and that they will not soon be able to get back.

Which is why Biden’s executive order should also come with a detail.

It should be time-limited to apply only through the date December 31, 2024, since everybody knows that if Donald Trump gets re-elected he can immediately reverse the order. There would also be a gap between January 1, 2025 and the inauguration on January 20, so if Democrats care about making this work they need to not only re-elect Joe Biden but make damn sure that Trump and his Meal Team Six can’t try again to do what they did on 2021. For one thing I presume Biden will not be making sure that local law enforcement and Capitol Police are suspiciously without reinforcement on January 6.

So that, if the Democrats want this override to actually last, they need to do the constitutional thing and draft that legislation, and have it ready to go by the time of the Democratic National Convention and campaign on it. Oh, and while they’re at it, they should draft legislation mandating that the Supreme Court is under the same ethics codes as lower courts, and expanding SCOTUS to 13 members (one for each District) AND giving them term limits. And campaign on THAT.

(Incidentally, this would also call the Democrats‘ bluff and force them to address the issue seriously, rather than keeping it as a political football the way Republicans did with their constituents for years before Dobbs.)

Put this Court on the ballot. Because whether anyone admits it or not, it already is.

The last time a president (a Democrat) seriously tried a court-packing scheme to change a hostile Court, it was widely considered a failure. After the Supreme Court ruled several times against Franklin Roosevelt’s New Deal bills, in 1937, Roosevelt supported a Judicial Procedures Reform Act. This would have allowed the President to appoint one new Justice to the Court for every current member who was over the age of 70, and at that time, that would have been six more Justices. This was rightfully seen as court-packing and obviously intended to achieve a partisan result, and the legislation died on the vine as even Democrats went against their president on the matter. But the joke is that the proposal failed, but not really. Shortly after the proposal, the Supreme Court ruled for the liberal position on West Coast Hotel Co. v. Parrish with a 5-4 margin as Justice Owen Roberts, who had ruled often against the liberals, agreeing with a Washington state law establishing a minimum wage. Popular wisdom called this “the switch in time that saved nine” although deliberations on the case had been made before FDR’s court-packing scheme. “Chief Justice Hughes wrote in his autobiographical notes that Roosevelt’s court reform proposal ‘had not the slightest effect on our [the court’s] decision’, but due to the delayed announcement of its decision the Court was characterized as retreating under fire. Roosevelt also believed that because of the overwhelming support that had been shown for the New Deal in his re-election, Hughes was able to persuade Roberts to no longer base his votes on his own political beliefs and side with him during future votes on New Deal related policies. In one of his notes from 1936, Hughes wrote that Roosevelt’s re-election forced the court to depart from ‘its fortress in public opinion’.” This also meant that such radical legislation as Roosevelt proposed was really not necessary.

That also meant that those justices, such as Willis Van Devanter, who wanted to retire did so without the expectation that they would be replaced by a conservative, and over the years FDR managed to make additional appointments that created a friendlier Supreme Court. Of course, part of this was because he had the time to do so. Roosevelt was elected four times, against the previously unwritten tradition that a president would only serve two terms, and died in 1945, very old and frail, shortly after his last re-election. And after his death, largely Republican-sponsored legislation quickly led to the Twenty-Second Amendment to the Constitution, specifying that no person can be elected President more than twice or in any event serve more than ten years including time as acting President. In the Wikipedia article on the Amendment, it was noted that the founding presidents felt a two-term limit to be practical considering the factors of time and aging, with Thomas Jefferson writing in an address, “If some termination to the services of the chief magistrate be not fixed by the Constitution, or supplied by practice, his office, nominally for years, will in fact, become for life; and history shows how easily that degenerates into an inheritance.”

The terms of the Supreme Court justices, like their number, and their code of ethics or lack thereof, are not set by the Court itself, all present conduct aside. They are traditionally set by Congress. The size of the Court was only set at nine after the Judiciary Act of 1869, and had previously been changed no less than six times in the nation’s history, usually for partisan reasons. As it is, two of Donald Trump’s three Supreme Court appointments were because of the deaths of Antonin Scalia, who had health conditions, and Ruth Bader Ginsburg, who was very old and frail. Ironically, FDR’s court-packing scheme failed because it was easily seen as an attempt to unbalance the American separation of powers, while the creation of presidential term limits directly after his death was deemed necessary to enforce a limit that previous men had been willing to enforce on themselves.

But now, frankly, it’s the other way around.

You’re at WAR, Democrats.

At some point, you should try shooting back.

Before the Supreme Court for Republicans Of The United States – SCROTUS – held arguments April 25 on Viceroy Trump’s theory of absolute presidntial immunity, it was assumed by Conventional Wisdom that the conservative, one-third Trump appointee court would seek to tactically delay a decision so that federal trials against him could not proceed before the election, but ultimately would not give him a win.

Now, people aren’t so sure.

San Francisco Chronicle: “Justices Neil Gorsuch and Brett Kavanaugh, two of Trump’s three high court appointees, and (Samuel) Alito said their concern was not the case against Trump, but rather the effect of their ruling on future presidencies.

“Each time Justice Department lawyer Michael Dreeben sought to focus on Trump’s actions, these justices jumped in. “This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” Kavanaugh said. The court is writing a decision “for the ages,” Gorsuch said.

“Justice Amy Coney Barrett, the other Trump appointee, seemed less open to arguments advanced by Trump lawyer D. John Sauer, searching for a way a trial could take place.”

Bloomberg: “Alito offered some support for Trump’s legal arguments, saying it could be destabilizing if presidents are concerned they’ll be criminally prosecuted when they leave office.

“A stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully,” Alito said. He questioned whether presidents will now fear they’ll be “criminally prosecuted by a bitter political opponent” rather than going into a “peaceful retirement.”

“Will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Alito asked.

Alito and Clarence Thomas are both very old guys and would probably like to retire, but only if they can make sure that their replacements would be conservatives, and conservatives of their ilk. So even if an “absolute immunity” decision would end up undermining their own authority, they will probably support it so that they can ensure their effective dynasty is continued, which it would not be if they died with President Biden (or Harris) in charge. The result would be “Our Lord Trump will reign o’er us forever and ever, because we, the Supreme Court, will protect him.”
That seems to be the art of this deal.

The problem at that point is that America would no longer be America.

At that point, we would not have rule of law any more, we would have rule by the biggest gang. The thing that the Wittgenstein of Witlessness doesn’t seem to get is that the Right is not the biggest gang. And you would think that Alito and Thomas would be smart enough to know that, but apparently not.

Several former military commanders filed an amicus brief on this case, summarized somewhat by an article by Ray Mabus, former Secretary of the Navy: “Imagine a large group of activists assembled outside the White House, peacefully protesting a recent decision by the president. They are waving signs denouncing the new policy, holding banners demanding change and chanting slogans about that president. As their numbers begin to swell, as their voices grow louder, the president issues an order to military commanders: Take them out.

“Our military leadership would then be faced with an impossible choice. They’d either have to follow the clearly unlawful order of their commander in chief, and commit crimes for which they could be prosecuted, or openly defy that order.

“This is not a far removed hypothetical, but a very real choice service members could face if the president of the United States is immune from criminal prosecution. “

Trump is assuming that once he gets in charge and appoints himself dominus et deus, he will be invincible because civilian resistance could not stand against the US military. But that assumes all of the military will stand with him. When they, and our NATO allies, now know that he thinks soldiers are suckers and he insists on being Putin’s little bitch.

This demand to the Court also rests on a critical flaw. As I have said, the weakness of this Roman-inspired republic is that like Rome, it grants more and more power to the executive rather than the Senate, which increasingly can’t get anything done. As a result, we have assumed the president to have more authority than he strictly has under the Constitution. War making powers, for instance. The assertion of the normie culture has been, “the President can do anything he wants, cause he’s the President.” Which is now Donald Trump’s best justification for his lifelong belief that “Donald Trump can do anything he wants, cause he’s Donald Trump.”

And while his lawyers may insist that while their argument in the abstract hypothetically applies to ANY president, it’s very easy to bring the matter back to reality. Trump is asking for absolute power. He’s saying, “The King can do whatever he likes”, but he’s NOT the King. Common sense (which granted seems to be in short supply at the Alito Court) indicates that the ruling doesn’t apply to just Trump. Ask these people if all these hypotheticals they are blithely discussing would apply in the abstract to Joe Biden.

Could Joe Biden order somebody to ice Donald Trump?
Could Joe Biden order a crackdown on right-wing media ranging from Reason Magazine to Newsmax?
Could Joe Biden, the day after presidential immunity was created by SCOTUS, then immediately declare Dobbs v. Mississippi to be null and void and sign an executive order making the previous Roe v. Wade standard nationwide again?

I think we all know how Chief Justice Alito would react to that hypothetical.

Because even if nobody in this case is arguing that the President’s authority allows him to destroy the balance of powers and nullify a SCOTUS ruling, what would THEY be able to do about it, if they themselves have declared that anything the president does cannot be prosecuted (short of impeachment and removal from office, which would require a two-thirds vote of the Senate, including Democrats, meaning, IT’S NEVER GOING TO HAPPEN), just as long as he says the two magic words “official act“, which will strike him with a lightning bolt and give him superpowers?

Memo to Future Fascists: Don’t declare absolute power until you actually HAVE it. Like that nice Hitler boy, he knew what he was doing.

Which is why when you listen to some of these talking heads, you’re getting an assessment: The three liberal justices will not vote for Trump, Thomas (who of course has not recused himself in a case where he has personal interest) will certainly vote for Trump, Alito is at least 90 percent likely to vote for Trump, Neil Gorsuch is at least 50 percent likely to vote for Trump, which leaves Brett Kavanaugh, Amy Comey Barrett and nominal Chief Justice John Roberts as the balance, and while they seemed ambiguous, they also don’t seem to be totally on Trump’s side. So the thinking now is, “Of all the nine justices, Gorsuch appeared to be steering his like-minded colleagues toward a decision that could result in sending the 2020 subversion case back to the district court in Washington for more hearings with instructions about what acts constitute official or private actions.” That would of course, still be a delay, and would definitely drag things out past the election, but that would also mean that SCROTUS wouldn’t have to worry about giving President Biden absolute immunity. So at least somebody‘s thinking ahead.

But even entertaining this mishegoss demonstrates the emotion and illogic of the Alito Court, which in attempting to decide a matter once and for all for their side just ends up creating a bigger rats’ nest. This same week, the Court held arguments on a State of Idaho law that forbids abortion for any reason other than the potential death of the mother, leading, among other things, to 55 percent of OB-GYNs in Idaho leaving the state for fear of being prosecuted if the government rules against their medical decisions. A possibility that could not have occurred without Dobbs vs. Mississippi. In that decision, Chief Justice Alito ruled that a national right to abortion did not exist because there is no affirmative precedent for it, even though this opinion had to assert a position not only against stare decisis but the wording of the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. So there should be no right to abortion because it isn’t positively stated in the Constitution. But there should be a right to presidential immunity when there’s nothing in the Constitution on that subject one way or another? Because it’s never come up before? Because nobody other than this particular subject forced the issue before, unless you count Nixon, which brings up the question that Justice Ketanji Brown-Jackson asked Trump’s attorney D. John Sauer, “What about the pardon?”

Mr. Sauer asserted for his client that the president must have absolute immunity from prosecution or the office will be crippled, raising the question of why no other president, including Richard Nixon or Bill Clinton, have made such an argument in the face of investigation. It is telling how much the republic has deteriorated that no president before Trump would make such an argument, and no other Supreme Court would take it seriously.

To assert, okay, maybe we shouldn’t let this obviously compromised and senile Russian asset have complete immunity but maybe the president in the abstract deserves some level of privilege for “official acts” is to assert a presidential power that never existed in the letter of law and was assumed not to exist in the spirit of the law, prior to a largely Trump-appointed Court. If such privilege were granted, would that lead to Mr. Alito getting more, or less, legal hassles in future cases?

Maybe … they shouldn’t give the president that privilege.

This is the judiciary, not the legislature. To create an interpretation beyond both the wording and spirit of the original law is effectively legislating from the bench. Which I thought “conservatives” were against. They should just stick to the script and what it says.

What is the term for that? Textualism? Strict constructionism? Constitutionalism?

Gee, if only we had a conservative Supreme Court that operated on that philosophy!

When the Way was lost there was virtue.

When virtue was lost there was benevolence.

When benevolence was lost there was right.

When right was lost there were the rituals.

The rituals are the wearing thin of loyalty and trustworthiness

And the harbinger of chaos.

• Lao Zi, Tao Te Ching

Saturday – 4/20 – the House of Representatives finally got to vote for Ukraine (and Israel, and Taiwan) after House Speaker Mike Johnson (BR.-Louisiana) suddenly changed his mind last week and decided to move the process through after holding up the Senate foreign aid bill for more than seven months. This required going over many in Johnson’s own Trumpnik party who oppose Ukraine aid at all costs, and many “progressives” who didn’t agree with Israel aid. It also meant that the various culture-war issues that Johnson was using as a pretext for holding up aid got agreed to by Republicans and centrist Democrats, such as a demand to have China remove its interest in the TikTok social media service.

Now the press seems to be forgetting that this move was actually Johnson’s last-ditch defense of the Trumpnik position: By separating the four proposals rather than just voting up or down on the Senate bill as is, he creates a situation where the House bill gets passed to the Senate when it was all that Democrats and hawk Republicans could do to stop the MRGA (Make Russia Great Again) contingent in the Senate from filibustering it. However, Senate Majority Leader Chuck Schumer announced on Twit that the Senate has locked in an agreement to approve the bills on the first vote Tuesday. In other words: Fuck You, Rand Paul.

I’ve been looking over some of my favorite YouTube bloggers for their opinions. Jake Broe actually thought that the Israel lobby got to Johnson, namely because of how the politics shifted after Iran directly attacked Israel with missiles. Which makes sense. Because as we know, Johnson’s brinksmanship and infinite delays were not just starving out Ukraine, but Taiwan, which is threatened by China, and Israel, which is threatened not only by Hamas, but by Hamas’ patron (and Russia’s drone supplier) Iran. And whether or not Israel can survive without American aid (I suspect it can survive a lot better against Iran than Ukraine can survive against Russia), Israel aid has been one of the proverbial “third rails” of Congressional policy, for both parties, and it’s amazing – and telling what’s happened to the Republicans – that Johnson could flip off Israel as long as he did.

So hey, thanks, Worldwide Zionist Conspiracy!

But again, that raises the question of why things changed. It’s a little easier to guess why an increasingly young and “progressive” Democrat caucus is not as fond of Israel especially as the Netanyahu government has made it more brutal and corrupt. But with the Republicans, being brutal and corrupt are selling points. And the Evangelicals who form much of the Republican base have always supported Israel because in their eschatology, Israel has to be restored in order to bring about Armageddon, so that Jesus can come back and be President again.

What’s changed is that, as I say, if Donald Trump announced tomorrow that he is a woman undergoing the process of transition, then every Republican in Congress would fight to the death for a pair of rusty garden shears to be the first one to castrate himself on the grounds that masculinity is now “gay.”

And that gets to the point that Republicans are what I call “professional Christians.” Not in the theological sense that they profess to a certain creed, but in the sense that being a certain kind of Christian is their job. It’s how they make money. And if they quit having the political opinions that are associated with that sort of faith, they could get fired. And then not only would they lose all those free taxpayer goodies from working in Washington, they might have to work in fast food or customer service like the rest of us.

Needless to say, to avoid that they would rather do anything else, even if one has to twist the definition of “Christian” like a Mobius strip. For example, outside of Congress, there’s Bill Barr, Trump’s former attorney general, who might certainly be evil but still has a brain. He at least was capable of resigning before he could be asked to fulfill Trump’s more harebrained election-stopping schemes, and in the subsequent years he went on something of a rehabilitation tour telling everyone in the press what a rotten incompetent Trump is. But he has always said he would vote for the Republican candidate because Biden is so terrible, and last week he affirmed he would vote for “the Republican ticket” (not mentioning Trump) because a second term in office for President Joe Biden would be “national suicide.”

That is not morality. That is not even ideology. That is programming.

That is “run program, if x, execute y.” All that matters is, does the candidate have an R by his name? I’m voting for him. Do they have a D by their name? I can’t vote for them.

Presumably Catholics like Barr rationalize voting for such an un-Christian Leader because the Democrats endorse horrible policies like trans rights and abortion rights. Of course Catholics always have been against abortion, but the Southern Baptists who have been at the center of modern conservatism used to support some medical allowances for abortion, even after Roe v. Wade was decided. After 1980, the Southern Baptist conference refused to allow abortion in cases of rape, incest or mental trauma. This was of course about the time that the Religious Right developed as a real force in Republican politics. In In Thy Kingdom Come, Randall Balmer recounts comments that political consultant Paul Weyrich, whom he describes as “one of the architects of the Religious Right in the late 1970s”, made at a conference sponsored by a religious right organization that they both attended in Washington in 1990:

“In the course of one of the sessions, Weyrich tried to make a point to his Religious Right brethren (no women attended the conference, as I recall). Let’s remember, he said animatedly, that the Religious Right did not come together in response to the Roe decision. No, Weyrich insisted, what got us going as a political movement was the attempt on the part of the Internal Revenue Service (IRS) to rescind the tax-exempt status of Bob Jones University because of its racially discriminatory policies.” According to a Politico article by Balmer, “Weyrich’s genius, however, lay in his understanding that racism — the defense of racial segregation — was not likely to energize grassroots evangelical voters. So he, Falwell and others deftly flipped the script. Instead of the Religious Right mobilizing in defense of segregation, evangelical leaders in the late 1970s decried government intrusion into their affairs as an assault on religious freedom, thereby writing a page for the modern Republican Party playbook, used shamelessly (later) in the Hobby Lobby and the Masterpiece Cakeshop cases. … I recall reading through Weyrich’s papers at the University of Wyoming in Laramie, and when I came across his correspondence following the 1978 midterm elections, the papers almost began to sizzle with excitement. He characterized the outcome as “true cause for celebration.” Weyrich had finally landed on an issue — abortion — that could mobilize grassroots evangelicals. Now, (Jerry) Falwell and other leaders of the Religious Right had a “respectable” issue, opposition to abortion, one that would energize white evangelicals — and, not incidentally, divert attention from the real origins of their movement.” In such a way white Evangelicals were able to create a “big tent” with the religious humanists of the Catholic Right, even though they agreed on little else but abortion prohibition: “In a reflection of their anxiety about linking their cause to the Republican Party or the New Christian Right, the nation’s Catholic bishops highlighted their opposition to the death penalty and their concern for the poor when discussing issues of concern in the 1980 election, while saying less about abortion than they had in the previous election cycle. The bishops’ desire to distance themselves from Reagan continued after the Republican’s election to the White House. While Jerry Falwell endorsed the president’s nuclear weapons buildup and his cuts in social programs, the National Conference of Catholic Bishops condemned these measures”.

It is such a movement that inspired not only Speaker Johnson’s previous loyalty to Trump but also the loyalty of Johnson’s current main opponent and fellow Republican Marjorie Taylor, Georgia Congresswoman and Troll Doll Animated By Witchcraft. Parroting the Russian line (only without the intelligence of a parrot), she opposes Ukraine as a Nazi state (run by a Jewish guy), says that Biden is trying to get this country into a war, even as Russia continues to threaten nuclear strikes against the West, and after Johnson’s flip last week announced no less than 22 riders on his set of bills, such as calling on Ukraine to shut down its “biolabs” (which do not exist), demanding that any Congressman who voted for Ukraine should be forced to join their military, demanding a “space laser” on the border (presumably to kill unarmed civilians trying to cross) and ordering that any aid given from the package either be rendered void or sent to other recipients. It’s what you call too clever by half, only without the clever part.

I mean, in previous decades when we used the term “useful idiots” for Russian partisans, it wasn’t quite so literal.

For the sake of being “pro-life”, partisans like Rand Paul, Marjorie Taylor and J.D. Vance are supporting a country that bombs Orthodox churches, that persecutes Evangelicals and Jehovah’s Witnesses and commits rape against victims as young as 4.

That is what The Party of Life is really supporting, kiddies.

Perhaps it was for this reason that some Republicans who actually remember when their “pro-life” party was represented by Ronald Reagan and John McCain started to object, in increasingly public ways. House Foreign Affairs Committee Chairman Michael McCaul (R.-Texas) said “I think Russian propaganda has made its way into the United States, unfortunately, and it’s infected a good chunk of my party’s base”. Another hawk, Rep. Dan Crenshaw (R.-Texas) told reporters, “I guess their reasoning is they want Russia to win so badly that they want to oust the speaker over it. I mean, it’s a strange position to take. I think they want to be in the minority too. I think that’s an obvious reality.” Crenshaw added: “I’m still trying to process all the bulls**t.”

Which might explain the really interesting rumor I got from the Internet this weekend.

Saturday, Beau of the Fifth Column posted a bit saying that some Republicans have stated a position, some publicly, though he didn’t name names. But the position is that if MAGAt Republicans go through with their motion to vacate against Johnson, these Republicans would immediately resign. And as of this week, the Republican margin of majority in the House is exactly one. Meaning the House would pass to control of the Democrats and the new Speaker would be Hakeem Jeffries of New York. Beau also said that the implied threat would be that if the House and the Senate are both Democrat controlled then they can pass a resolution taking Trump off the ballots. I consider this highly unlikely. More plausible is the chance that if enough Republican Congressmen in the right states leave, this will kill the Trumpnik ace in the hole: If the Electoral College is tied or contested then the election is decided in the House of Representatives, where the vote is done by state delegation and Republicans thus had an edge even in 2020.

Keep in mind, this would make Jeffries the first Black Speaker of the House in America’s history, so if hawk Republicans are willing to contemplate that, they must be PISSED at the MAGAts.

I had pointed out a while ago that the MAGAt ultimatum has always been that if sane Republicans ever challenged Trumpnik dominance that Trump and his cult could just take their ball – that is, their voter base – and go home. Yet the Trumpniks have never asked themselves what would happen if the sane Republicans left them. We may be about to find out.

But this just gets to a point I already made about why Republicans can’t do anything even if they are in charge, because one, as Mr. Crenshaw implies, they are in spirit always an opposition, read, minority party because being in charge is no fun and implies too much responsibility. Second, the American system has been tending more and more towards giving power to the executive and while you would think that works for Donald Trump, his actual time in office and his “Project 2025” indicates the problems you get if you make the President the Emperor for real and dismiss the other branches of government. You need checks and balances if only to correct mistakes you don’t know you’re making. And if the GOP (Greedy Old Puritans) are now almost completely a Party of Trump, that may serve his concept of unitary government but it doesn’t serve government as it actually exists.

In his Trump’s own mind at least, the Republicans are the Party of Trump and each individual is just an extension of his own interests, but all these other roles in the government and all these downballot races still matter. But the appeal of being in the Trump cult is the idea that if Trump does whatever he wants and tells everybody what to do and gets away with it, you can too. Which is of course just another Trump lie. And the problem is if your office does NOT give you the effective powers of a Roman Emperor and you still want to act like you are.

As I said: “It’s one thing if the party is dictated to by one whiny little baby who has actual influence and the support of the mob. But what if you don’t have those things and you still want to be a whiny little baby? How do you expect to resolve disputes? By following rules and acting like an adult? Well, clearly that’s not cool in the Republican Party any more. So what happens when you have two or more people who don’t have a clear majority of supporters, expecting to speak for the Party, expecting to exercise supremacy when they don’t have it? What do you have then?”

It’s one thing if you’re the president and tradition and practicality give you a great deal of authority, but if you’re Joe Schmo representing the district of Kokomo, you don’t get to dictate terms like Trump. But nobody told the Trumpniks.

When Kevin McCarthy (BR.- California) acceded to Matt Gaetz (BR.- Pedophilia) and his demand to let the Speakership be challenged by only a single Congressman, he was signing his own political death warrant and he knew it, but he didn’t care, because like many politicians he cared more about the perks of his station more than actually doing anything with power. But the fact that anyone can bring a motion against the Speaker means that any one member of Congress – such as Marjorie Taylor – can act like a Trump, and that’s exactly why they wanted that to happen. And the rest of Congress – apparently now including a strong plurality of Republicans – can see why that doesn’t work.

A certain amount of compromise is necessary even if “conservatives” hate the concept more than Randians. Because everyone else on the floor is a vain political creature just like you and they’re not going to give you something for nothing any more than you would do for them. The (small r) republican system is designed the way it is to allow for negotiation between different groups. You will never have a united States of America otherwise, because we can’t all agree on everything.

This is, incidentally, one reason the First Amendment says that Congress shall make no law establishing an official religion for the government, which Trumpniks would know if they ever bothered to read it.

As Hayes Brown at MSNBC points out, the irony in Johnson’s deal is that it ends up being the way the House is supposed to work. By constitutional design. Recall that the whole clusterfuck with Kevin McCarthy happened because the House has to choose its Speaker by vote of the entire chamber, not just the majority party. “It is not the parties that are dictating what becomes law so much as the will of the majority. And the process, which has allowed for amendments rather than diktats from above and will allow members to vote as they please without repercussion from leadership, is exactly what archconservatives say they want.” This is of course the exact opposite of the way Business As Usual has been until now, where both the Senate and House leaders get to dictate the agenda without even considering whether a majority is behind them, which was how then-Senate Majority Leader Mitch McConnell was able to keep President Obama from even getting his choice for Supreme Court to a floor vote. The business of the country doesn’t get done because the party agenda is more important. But at least in this case we have a clear majority of legislators who may not agree on whether abortion is a mortal sin or whether it’s the Jews or Arabs of the Middle East who should be treated as pariahs, but can agree that helping our historic allies and defending countries against our historic enemies is a primary national interest, even if one side’s party boss – who may have ulterior motives on the matter – disagrees.

Country over party.

What a fucking concept.

“If you choose not to decide, you still have made a choice.”

– Rush, “Freewill”

As we could all predict by now, Donald Trump, Once and Future Viceroy for Russian North America, has not only gotten more tasteless than ever but during Holy Week decided to lean that much harder into his Christ complex than he did last year.

Like, selling a Bible that anybody could pick up for practically free and packaging it with a copy of the Constitution (which he’s also never read) and the lyrics to “God Bless The USA” all for the low, low price of $59.99. Something tells me this text isn’t going to include the Gospel passages where Christ chases the moneychangers from the Temple but again, that’s assuming that the fan club has actually read that part.

Look, all I’m saying is, if Trump wants to prove he’s Jesus, all he has to do is get nailed to a cross – live on TV, so we can all see him scream – get hung up in the air, die of exposure, and come back after three days. THEN I’ll worship him as God. Deal?

No, no, no, Feds, I am not threatening to kill a (former) president. I mean, if Trump IS Jesus, if he dies, he comes back, right? No harm, no foul!

Now if Donnie knows he ISN’T the Messiah – and we all know that even if he is, he’s too cowardly to take the chance – then maybe he should shut his fat mouth with the comparisons to Jesus.

And while he’s at it, he should quit saying he’s been treated worse than Abraham Lincoln. How do we know you haven’t been treated worse than Lincoln, Donnie? You’re STILL ALIVE, aren’t you?

For Trump to be treated as bad as Lincoln, he would have to be assassinated by a Confederate sympathizer who was angry that Trump stopped a white supremacist insurrection against the United States government. Somehow I consider that less likely than Trump opening his tomb after three days.

Although Trump is establishing a pretty good case for life after death, not just in that he is still walking around after almost eighty years of an indulgent lifestyle that would kill most men, but because he is clearly able to walk around with no brain activity. Most of us observed even when Trump was President that his command of vocabulary was greatly limited even compared to where it was a few years before 2015. Now it’s impossible not to notice how he slurs, forgets basic words and gets people’s names mixed up, like when he says that Barack Obama is the current president and not Joe Biden. Or when he twitted that Jimmy Kimmel and Al Pacino at the Oscars were the same guy.

Trump is like a dog. He’s only got so many brain cells to process a given mental activity. Like, have you ever been in a room and had a conversation with someone, and a dog is in the room, and you are talking about any number of things, and one of you says the word “food” and the dog’s ears prick up? That’s Trump. He hates the current President for usurping his throne, but he really hates Barack Obama (cause, reasons) so he fuses his present object of hatred with his primary one. Likewise, he has always hated Nancy Pelosi but currently hates Nikki Haley for impeding his path to coronation, so he kept repeating Nikki Haley’s name and blaming her as Speaker for the events of January 6, when everyone knows she wasn’t the Speaker then, it was Pelosi. But Trump’s brain isn’t complex enough to make these subtle distinctions.

The problem is, Trump is a meal ticket for a lot of people, some of whom are not even Russian. And they have to strike the balance between Trump being just dumb enough to manipulate and not so mentally incontinent that he gives the game away. So I’m sure one of his people had to tell him that he has to put a lid on these blankouts or else Ivanka is going to have to take him to a nice memory care facility where you eat dinner with plastic utensils. So Trump came up with an explanation that will satisfy the intellect of both himself and his fan club: Whenever he confuses Obama with Biden, it’s because Obama is really the one in charge and Trump calls him the President sarcastically. Or as political strategist Pee-Wee Herman would say, “I meant to do that.”

(You will recall that Trump has also adopted other campaign strategies from Pee-Wee Herman, such as ‘NEHHH!’ and ‘I know you are, but what am I ?’)

No doubt when, not if, Trump goes into a fugue state, drops his pants and looses his bowels on stage in full view of reporters and cameras, he will explain the incident after the fact as his postmodern symbolic commentary on the worth of the Democratic Party and its campaign promises. The fun will be watching the rest of his Party try to play along.

Trump said that if Biden wins, it would be “the end of democracy.” Which is really just his typical projecting. But in a way he’s right.

Because we should not be confused into thinking that “democracy” in the US actually means democracy or representative government. Americans say “democracy” to refer to our political system like we say “Levi’s” to refer to jeans or “Coke” to refer to any random soda pop when anybody who knows the difference between Coke and Pepsi and prefers one to the other would probably not appreciate the generalization. When we say “democracy” we just mean “the way we’re accustomed to doing things.” And the way America has been accustomed to doing things is that we are in effect only allowed to vote for one of two political parties, in exchange for which the two parties graciously allow each other’s existence and trade places in the government majority every once in a while. But like an officially de-segregated school where the races never hang out together, states have been grouping up into one-party blocs for a while, and people in one state can’t see the opinions of states run by another party as legitimate. This has been kind of a default in the Democratic-liberal echo chamber, but it is actually being enforced by law and legal maneuvering in Republican-run states, even in states where Democrats can’t get the time of day and such maneuvering shouldn’t even be needed. And because of such maneuvering, Republicans are starting to get a backlash even in those states. So if Biden wins, the Party of Trump will just confirm in their own minds that this government is an illegitimate imposition on their right to rule, and if Trump wins, the Democrats, and probably everyone else who doesn’t vote for Trump, will see it as a coup, even in the increasingly unlikely event that Trump has the votes to win fair and square like he did in 2016.

This is no longer a two-party system. It is one party that actually wants to have a government versus an insurgency. And when that insurgency is actually in charge, as with the Trump Organization before 2021 or the House of Representatives now, they can’t get anything done besides using government force to go after their enemies, who often include each other. And as the Republican Party becomes that much more a literal Party of Trump, where individual members only exist as extensions of the Leader’s will, it becomes that much more of an all-or-nothing situation, by his demand. In fact it has to be, as Trump’s lifelong criminal tendencies only metastasized with the opportunity of his office and the former real-estate cheat became an outright threat to national security who has to be investigated and prosecuted.

This is an all-or-nothing election, by Trump’s demand, whether anybody else wants it or not. You might wish that once this is over, we can all get back to an equilibrium between the two parties in the status quo ante, but the old order is gone and will not come back, because the people who actually run the Republican Party don’t want the old Republican Party, even if Trump dies tomorrow. As it is, we already know Trump will not simply retire and co-exist with other political actors like every other president and losing candidate before him has. This election is very simple: Do you want Donald Trump to be your King or do you want Donald Trump to go to jail?

Those are the only two choices. It is not a choice of whether you prefer the Republican or third-party candidate in Congress to the Democrat. It is not even a question of whether you think Joe Biden should be President. And it is certainly not an issue with a box of Wheaties being eight dollars at the store. The choice is: Do you want Donald Trump to be an unaccountable God-Emperor or do you want Donald Trump to be investigated and prosecuted for his crimes? Because Donald Trump, with his “presidential immunity” tactic, will accept no other terms. Any vote that is not for Joe Biden and Democrats down-ballot, whether it’s third-party, ticket splitting, or staying home, is a vote for Donald Trump to be your King. Any vote that is for Democratic candidates is a vote for Trump to go to jail. And if the Trumpniks actually seem to be leaning into the idea of “vote in November so we’ll never have to vote again”, I don’t think enough non-Trumpniks seem to be grasping the full implications of what it means to oppose Trump, why he must be opposed totally, and what would have to happen if he is defeated.

It is the reason that Mitch McConnell and various other Republican Senators who knew better did not join the Democrats in impeachment after January 6. Because it was perceived that this would mean breaking with Trump’s “MAGA” movement and if they did that, the Republican Party would effectively cease to exist. It might hold on in “safe” seats but those seats are usually safe only because of the kind of people who go along with MAGA.

We could go to war with these people. If that seems radical, just remember that they declared war on the rest of us when they decided to support an insurrectionist who wanted to overturn an election to stay in power. But as Eric Stratton would say, that would take years, and cost millions of lives.

Trump is perceived as invincible because his movement is perceived as invincible, and this reinforces his cult’s identity fusion, because the cult follows Trump because they perceive HIM as invincible. He gives them the freedom to be their worst selves because he gets to indulge his most lowbrow, evil, animal instincts and get away with it, so they think they can too. But anybody can see that it’s not entirely mutual. Trump’s underlings DO go to jail. Trump’s political followers do lose election recounts and have their “election was rigged” cases thrown out of court. Even Steve Bannon and Paul Manafort got sent to prison briefly, although Trump pardoned them, which gets to a different point.

And in a lot of those cases, a lot of those defendants expressed regret for their actions in court, once they realized their actions had consequences. But then a lot of them went back on their public statements and returned to insurrectionist rhetoric. Why? Because Trump is still a free man who gets to do whatever he wants so they figure their Savior is going to come back and restore the Kingdom.

The obvious way to break this identity fusion is to make the insurrectionists realize that consequences accrue to everybody, including the Leader.

Rhetorically speaking, kill the head and the body will die.

Here’s a really radical communist idea that you could only come up with after smoking a foot-long blunt laced with PCP. You ready?

You sitting down?
You’re holding on to your chair?
Here it is:
What if – when there is a law on the books where punishment for violation includes jail time, and someone breaks that law, they go to jail?

Seize it if you try.

Or, what if, when a defendant is found guilty at trial and sentenced to pay a settlement, and obliged to put up a bond at settlement or forfeit assets, that person actually pays the bond, on time – as opposed to getting the bond cut by more than half, and getting more time to pay it?

I know, right? It’s like no one else THOUGHT of this before!

But this gets to the flip side of the problem, which is that if Republicans don’t want to impose order on their organization (which is what a political party is for) because then the duopoly would cease to exist, the “normie” Democrat-aligned establishment is handling Trump with kid gloves and a ten-foot pole because they realize the duopoly would cease to exist if they went after the mobster who took over one of the ruling parties like a Stage 4 cancer. I have been telling Republicans, over and over and over again, that if they keep going down this path with Trump, America really will be a one-party state, and that one party will be the Democrats. And nobody wants that. Including the Democrats. Because then they’d actually have to take responsibility for something.

And the whole premise of modern American government is avoiding taking responsibility. The idea that someone, somewhere else, is going to solve the problem, and not me. Sometimes – not as often as we want to think – that actually works. It will not work with Trump, who is a barnacle on the system that will not just go away and do what he’s expected to do like Hillary Clinton or George W. Bush. At this point, refusing to confront Trump is catering to him, and that will irreversibly alter the system just as much as the radical un-American commie idea that elites who commit crimes should go to jail like everybody else.

When the republic was founded, even between the Articles of Confederation and the Constitution, the idea was not to have the kind of government that the Colonies had under George III. From now on, the premise of political science is to not have the kind of government that would cater to Donald Trump. If only because recent historical example demonstrates that giving the President unchallenged authority and unlimited benefit of the doubt only incentivizes career criminals to seek the office. Like, in addition to putting Supreme Court Justices on term limits so that the institution isn’t quite so dependent on the choices of one President, we should state flat out that the President IS under the same laws as everyone else and can be investigated and prosecuted by the FBI just like everybody else. Because impeachment will never work due to partisanship, and any truly partisan investigation untroubled by facts will flounder at the start, as even the Republicans have been obliged to acknowledge with their investigations of Joe Biden. Not only that we should take away a lot of the powers that have been given to the presidency, like the sole power to pardon, which in the cases of both Trump and Bill Clinton has been used with ulterior motive.

Of course that would not only require voting in Democrats (or non-Republicans) nationally, it would require voting in the kind of people who understand why things need to change and will actually change them. But again, it’s either that, or one way or another you are voting for the status quo, and one way or another the status quo is going to die because “conservatives” will not work to preserve it and are actively trying to destroy it. Responsibility cannot be avoided. A choice needs to be made regardless.

I already know what my decision is, but it’s not just my decision.

It’s yours.

Mister Chief Justice, and may it please the Court,

On the case of Trump vs. Alexander, where the State of Colorado asserts that Donald J. Trump is ineligible to run for president as an insurrectionist under Section 3 of the 14^th Amendment, the defense has taken two positions. One, which I will address immediately, is that because ‘President’ is not among the offices listed under section 3, that therefore it does not apply to Mr. Trump. The other argument is that the 14^th Amendment should not apply to Mr. Trump and he should be allowed to run for president because section 3 allows for the prohibition to be removed by a joint act of Congress, a position which implies that the President is in fact subject to the Amendment.

To address the first point briefly, the defense has stated that there are such things as officers who are appointed for a certain purpose, but such officers are not elected officials and would thus not be subject to the Amendment in any case. It was already mentioned that when the 14^th Amendment was being discussed for passage in the Senate it had in fact been brought up that the wording does not include ‘President’ and Senator Lott Morill said, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”

This was a matter already addressed in the Colorado Supreme Court’s ruling on Judge Wallace’s position that former President Trump has committed insurrection but is still eligible to run for office because the 14^th Amendment does not specifically mention the President. It was ruled that the language is nevertheless inclusive and that the matter in question is that Mr. Trump is ineligible because he participated in an insurrection. The advocates of this position state that it is “self-executing” in the sense that such a person is necessarily ineligible to run for office in the same way that the Constitution says a 14-year old or a foreign-born citizen cannot run for President. It is not however, self-executing in the sense that there is no official determination that Mr. Trump or some hypothetical subject has or has not participated in an insurrection.

I am going to go off on a tangent here. There is a theme on social media where someone will post two frames of a movie in which he has characters react according to intelligence and common sense rather than as the plot of the movie went, and the third frame of the movie is the end credits, because if people made the sensible conclusion instead of acting as dictated by plot, the movie would be over.

The example I’m thinking of is Star Wars Episode II: Attack of the Clones. This is the scene where Senator Amidala and the two Jedi, Anakin and Obi-wan, are captured by the Separatists under Count Dooku and led into an arena, and get rescued by the new clone army created by Chancellor Palpatine. And before that, Obi-wan tells Anakin that he was captured by Dooku, who told Obi-wan that the head of the Sith controls the Senate. And Anakin deduces that if a Sith controls the Senate and the clone army is Palpatine’s project, then Dooku and Palpatine are working together. And the third panel of the meme is “Written and Directed by George Lucas” because if the Jedi made the logical conclusion, Palpatine’s scheme would be over.

We are being asked to believe that what happened on January 6 was coincidence, not conspiracy. We are asked to believe in an absurdity. We are being asked to believe that when the president assigned responsibility to his Vice President for taking his case, then blamed that vice president for not doing so, and the mob in the Capitol reading his social media posts reacted by chanting “HANG MIKE PENCE”, that was coincidence, not conspiracy. We are being asked to believe that when testimony to a Congressional committee revealed that the president told his security to disregard the metal detectors in Washington because “they’re not there to hurt me”, that was not assisting an insurrection. When he refused to send troops to restore order for several hours and left that matter to Mike Pence himself, that was not assisting an insurrection. When supporters of the president guided tours through the Capitol halls for people who committed violence on January 6, that was not assisting an insurrection. When Jefferson Davis was placed on trial for treason after the Civil War, his own lawyers argued that he had already been punished by the provisions of Section 3 of the 14^th Amendment when he had committed no actual crime other than simply being the head of the insurrectionist government.

We are being asked to believe that we cannot declare Donald Trump ineligible for federal office as an insurrectionist because the mere fact of his actions is not enough, and he is innocent because he was not so stupid as to declare, “Ey, I’m committing an insurrection here!”

When that was never the standard when the Amendment was written and when it was previously applied.

I am going to go on another tangent and this does relate directly to the matter at hand. In board games, there is a concept known as “rules as written” because the rules as written are often different from the game as actually played. In Monopoly, it is a little-known rule that when you land on a space and you don’t want to purchase the property, you can’t just end the turn and pass to the next player. You have to set up an auction, in which all players are eligible, including the one who refused first purchase, and the winning bid wins, even if it’s less than the listed price of the property and even if it’s made by the person who refused the straight purchase.

This actually makes the game go faster because the properties get snapped up faster, but because you have to run through auctions, most players don’t bother with the rule cause they don’t want to deal with it. So for the sake of making the game easier and less complicated, we actually make it longer and more complicated.

We run the American government according to house rules all the time. For instance, we have been having the President take this country to war for decades. The last time Congress formally declared war was after Pearl Harbor in World War II. We give the President all kinds of powers that aren’t really enumerated in the Constitution. Because it’s easier than having Congress do its job. This is what happens when we do not place Article 1 ahead of Article 2.

And this is what ties to the matter at hand, because the discussions have related not only to impeachment of the president but the matter of how Section 3 of the 14^th Amendment is to be enforced or reversed. As we know, Article 1, section 2 of the Constitution states that the House of Representatives shall have sole power of impeachment, implying a simple majority vote in the absence of another threshold. Section 3 of Article 1, referring to the Senate, says impeachment cases must be tried in the Senate, and does specify that “no Person shall be convicted without the Concurrence of two thirds of the Members present.” This would seem to be an easy enough standard because in theory it allows the case to be established but only allows conviction when the guilt of the subject is clear and the offense is grave. It is assumed that because the Senate is the senior house of a separate branch of government that they are a neutral judge. In practice, we disregard the fact that since 1800, the President of the United States is the de facto leader of his political party in Congress. And thus while a preponderance of the House might be enough to send a case to the Senate, in practice a conviction in the Senate will never occur, because due to party allegiance, which is not accounted for in the Constitution, at least one-third of the Senate is going to be taking the President’s side regardless of the charge. Were that not the case, it raises the question how such an individual could get to be President in the first place.

Now on the matter of the 14^th Amendment, Trump’s defense goes between stating that the Colorado decision was improper because Congress can act once a candidate is elected but before taking office, or that the Court does not need to take responsibility in this case because it properly rests with Congress. From the text, no person may run for office who “shall have engaged in insurrection or rebellion”, but, “Congress may by a vote of two-thirds of each House, remove such disability.”
That is an even higher standard than the threshold for impeachment. It would require not only a two-thirds vote of the Senate but of the House of Representatives. And if we can see the practical chances of a successful impeachment, what are the chances that the joint Congress would restore an insurrectionist by a two-thirds margin?

When we say that an unethical president can be corrected and removed by impeachment, in practice we are saying “that’s not ever going to happen.” When we are saying that the issue with section 3 can be corrected by a two-thirds vote of Congress, we are saying, “that’s not ever going to happen.”

We are supposed to take the plain text of the Constitution and make that the ruling as though that were the only matter that applied.

When, in a past decision, the Court overruled precedent and decided that the the rights of citizens could be taken away by the states on a certain matter, in practice meaning that these rights apply to Americans in some states and not others, there was no consideration given as to the consequences or whether that would cause social chaos. All that mattered was the purity and the principle of the decision itself. And we are now asking whether applying the insurrection clause against one candidate, even with cause, should be avoided because that would disenfranchise voters? We are saying, in that case, that the State of Colorado cannot make that decision, if only on its own behalf?

In the past, there was no consideration as to whether the Court’s unilateral decision disenfranchised people in some states but not others, and now we’re expected to believe that that question matters?

On one recent opinion, it was remarked, “the current Court is textualist only when it suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get out-of-text-free cards.”

And yet we are supposed to believe that courts make decisions on the law as it is written with no consideration of context or consequences, that this is a place of law, not politics.

We all know that is not the case.

And to state this is not an accusation of bias or malfeasance, it is a statement of fact. It is impossible to make a decision on law that has no bearing on politics because law shapes politics and vice versa. The law in an absolute monarchy is going to be different than the law in a constitutional republic, and necessarily that dictates the process of politics and the governance of the country. When we create this arbitrary distinction between what the law says and how the government actually works in practice, and apply it only as we select, we are making sure that the law cannot be applied practically.

Any decision you make is going to have consequences, including the decision to do nothing.

What then is the role of a separate and independent judiciary?
The role of an independent judiciary is, and can only be, to make a fair ruling that is consistent with both a small-d democracy and a small-r republican system of government. To wit – you cannot have a democracy if one man can overrule an election. You cannot have a constitutional republic if one man can override the Electoral College. The decision here for us today is not just whether Donald Trump is immune to section 3 of the 14^th Amendment, or to any laws at all, but whether the insurrection clause of the 14^th Amendment even applies or is merely an appendix that can be removed from the constitutional body without consequences. Because if it does not apply in the case of Donald Trump, then find a case in American history where it would be more appropriate.