Publisher Retracts Two studies relied on in Mifepristone cases now before Supreme Court

Retraction Notice, 2024 SAGE publications has retracted three articles relied upon by the District Judge who enjoined FDA's approval of the abortifacient drug Mifepristone.

The Supreme Court will on March 26 hear argument in two cases involving the abortifacient drug Mifepristone.  They are FDA v. Alliance for Hippocratic Medicine, NO 23-235 and manufacturer Danco Laboratories v. Alliance No. 23-236.

In the Danco case the first Question Presented is whether physicians who have never prescribed the drug because they are united in their ethical objections to abortion have standing to sue. The Court frames the question as:

1. Whether an association can demonstrate Article III standing to enjoin a government action by arguing that some unspecified member may be injured at some future time by the challenged action.

U.S. District Judge Matthew Kacsmaryk, in Alliance for hippocratic Medicine v. FDA enjoined the FDA's approval of Mifepristone - one of two drugs in the protocol which is used to induce most of the clinical abortions in the United States.  An essential element of his decision was the finding of standing in favor of the anti-abortion physicians - joined in a group called Alliance for Hippocratic Medicine.

Article III of the U.S. Constitution extends the judicial power only to "cases and controversies".  That has long been held to bar reliance on hypothetical questions to construe laws and Constitutional provisions. In essence complainants must show that they have a material stake in the case, not merely a moral or ideological interest in the dispute.  

The plaintiff physicians in the Alliance case - pending argument before the Supreme Court - alleged such a stake.  Judge Kaczsmaryk found in their favor on this threshold issue:

Here,the associations members have standing because they allege adverse events from chemical abortion drugs can overwhelm the medical system and place enormous pressure and stress on doctors during emergencies and complications .(fn 9)

9 See James Studnicki et al., A Longitudinal Cohort Study of Emergency Room Utilization Following Mifepristone Chemical and Surgical Abortions, 1999-2015, 8 HEALTHSERV. RSCH. MGMT. EPIDEMIOLOGY8 (2021) ( visits following mifepristone abortion grew from 3.6% of all post abortion visits in 2002 to 33.9% of all post abortion visits in 2015. The trend toward increasing use of mifepristone abortion requires all concerned with health care utilization to carefully follow the ramifications of ER utilization.  .

*******

At the request of Sage and the Journal Editor, the following articles have been retracted:

Studnicki J, Harrison DJ, Longbons T, et al. A Longitudinal Cohort Study of Emergency Room Utilization Following Mifepristone Chemical and Surgical Abortions, 1999–2015. Health Services Research and Managerial Epidemiology. 2021;8. doi:https://doi.org/10.1177/23333928211053965

Studnicki J, Longbons T, Harrison DJ, et al. A Post Hoc Exploratory Analysis: Induced Abortion Complications Mistaken for Miscarriage in the Emergency Room are a Risk Factor for Hospitalization. Health Services Research and Managerial Epidemiology. 2022;9. doi:https://doi.org/10.1177/23333928221103107

Studnicki J, Longbons T, Fisher JW, Harrison DJ, Skop I, MacKinnon SJ. Doctors Who Perform Abortions: Their Characteristics and Patterns of Holding and Using Hospital Privileges. Health Services Research and Managerial Epidemiology. 2019;6. doi:https://doi.org/10.1177/2333392819841211

Post-publication peer review

Two subject matter experts undertook an independent post-publication peer review of the three articles anew. In the 2021 and 2022 articles, which rely on the same dataset, both experts identified fundamental problems with the study design and methodology, unjustified or incorrect factual assumptions, material errors in the authors’ analysis of the data, and misleading presentations of the data that, in their opinions, demonstrate a lack of scientific rigor and invalidate the authors’ conclusions in whole or in part. In the 2019 article, which relies on a different dataset, both experts identified unsupported assumptions and misleading presentations of the findings that, in their opinions, demonstrate a lack of scientific rigor and render the authors’ conclusion unreliable.

The Spirit of a Law as an Interpretive Tool - Mike Rappaport - The Originalism Blog

The  title statement is OK But not the final one - that it's still originalism so long as the interpretation "enforced the spirit based on discerning the constitutional enactors’ purposes for the law".  The Constitution, like the Gospels, is interpreted in contradictory ways. This is inevitable as a result of the limits of foresight, but more importantly the limits of self-insight.  So Jefferson could write that all men are created equal...while enslaving his own children even beyond death. To say that the 14th Amendment vindicates the first paragraph of the Declaration is true only in the sense that Lincoln gave it at Gettysburg by freeing the Declaration from the contradictions within the document and the Constitution's explicit preservation of property in humans.  Gettysburg vindicates the Declaration, by casting aside Jefferson's own limited understanding, biases, and personal failings.

- GWC

The Spirit of a Law as an Interpretive Tool - Mike Rappaport - The Originalism Blog

Sai Prakash has written a significant paper entitled Spirit which strongly argues that at the time of the Framing of the Constitution, interpreters looked to the the spirit of a document, not merely to its letter.  As a result, he argues against the strict textualism of Justice Scalia.

Sai presents a large amount of evidence for this position.  And it is hard to argue with his thesis that at the time of the Framing interpreters often referred to the spirit of a law.  Ultimately, though, the question is what this evidence shows about interpretation.

In my view, the spirit of a law was used in a variety of ways that I think are consistent with originalism. 

1. The spirit of a law was most often used to mean the purpose of or the intent underlying a law.

2. The spirit (purpose) of the law could be used to resolve an ambiguity in an ambiguous or unclear law.

3. The spirit (purpose) of the law could be used to determine whether there was an absurdity in the law that should be corrected even though its text seemed to unambiguously require the absurd result.

4. The spirit (purpose) of the law could be used to avoid an overly literal reading of the law. Consider the famous case of a law that forbade “drawing blood on the streets” that might have been applied to a surgeon assisting a patient in a way that caused bleeding.  While the literal meaning of the term “drawing blood” applied to the surgeon, the usage of the term suggested it meant something like an attack or other violent action that caused bleeding and thereby excluded the surgeon.       

5. The spirit of a law was used to refer to the purpose or the overall principle underlying a law that could be gathered from its structure. In those cases, that principle by itself was not necessarily enforceable (except in the way indicated by 2, 3, and 4 above).  But that principle was used as a way of conveying the overall meaning and effect of a law.  If an amendment was suggested for a law that conflicted with that principle, one might say that the amendment was contrary to the spirit of the law.  

6. The spirit of a law might be used to guide the discretion of an official who had discretion under the law. For example, a prosecutor might not enforce the law in a certain circumstance on the grounds that enforcing it would be contrary to the law’s spirit.  But if the law were enforced, a court would be required to apply it in that particular (contrary to the spirit) way.

I believe that all 6 of these examples are entirely consistent with an orthodox originalism, even though some of them might conflict with a very strict textualism such as John Manning’s.  The key question is whether the spirit was ever used in additional ways that might conflict with this orthodox originalism.

7. One possibility is that it was used to interpret a law in violation of the unambiguous text even though the law did not create an absurdity. Instead, if the text were enforced, it would merely be inconvenient or less beneficial than the alternative, non-textual interpretation.   

Courts sometimes engaged in such practices and sometimes even acknowledged they were doing this.  Still, I believe that this was a minority view at the time of the Constitution.  But even if one were to accept this as a method for interpreting the Constitution, it would still be consistent with a type of originalism – maybe not an orthodox originalism – so long as one enforced the spirit based on discerning the constitutional enactors’ purposes for the law.  One would only get nonoriginalism if the spirit could be used to further purposes that the Framers did not hold or would have rejected.  And I have not seen evidence that interpreters understood the spirit in this manner.   

Old Constitutional Provisions and Presidential Selection: The folly of exhuming Section 3 of the 14th Amendment

“The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance.” Jason Murray, Attorney for Norma Anderson, an objector to Donald Trump's listing on the Colorado Presidential primary ballot.

 Samuel Issacharoff finds that the 14th Amendment section 3 is a mechanism 

Old Constitutional Provisions and Presidential Selection: The folly of exhuming Section 3 of the 14th Amendment

By Samuel Issacharoff (NYU Law School)

The moves to disqualify former President Donald Trump in Colorado and Maine will doubtless force the Supreme Court to confront the obscure Section 3 of the 14th Amendment. In his petition for certiorari, and in particular in Part II of the argument section of the brief, Trump points to, but ultimately shies away from, a disturbing question of constitutional design. The vexing question is what becomes of a constitutional provision that lives beyond its historical context with nothing in either legislation or judicial interpretation to keep it up to date.

Section 3 of the 14th amendment, by its text, limits the application of the disqualification to only those who had previously taken an oath as an officeholder of the United States. Leaving aside the interpretive debate on whether the President and Vice President are in fact “officers of the United States” as that term has been understood, the prohibition is an odd one outside of the obvious context of the Civil War. Why would any country forbid election to high office for individuals who have engaged in insurrection or aiding national enemies, but only if they had previously been a member of government? Why prohibit an insurrectionist who had previously served one term in a state legislature from subsequent office-holding, but allow the election of a fellow insurrectionist who may have committed even more egregious acts but merely had been a county commissioner or not held office in the past?

No doubt formal arguments can be constructed around the nature of the oath. I suspect, however, that the real reason follows from the historical fact that the political and officer corps of the Confederacy were drawn from governing officials who predated secession and then emerged as drivers of the rebellion. Similarly, other countries have circumscribed the political ambition of individuals with links to government power in the service of antidemocratic aims. Following World War II, West Germany’s constitutional authority to ban political parties was meaningfully invoked only twice; once to bar former Nazis from recreating themselves after the war, and once to ban the Communist Party from serving as the propagandist for East Germany. Context matters.

For centuries, courts in the United States and Britain have applied the Rule in Heydon’s Case, which instructs that the interpretation of law must address the mischief that the promulgators of the law sought to redress. This does not mean that laws are intended for the period of their enactment alone, only that the circumstances of enactment matter in defining the boundaries of law’s application, particularly for very old laws. In this sense, Section 3 resembles and anticipates the lustration laws that went into effect in Germany after WW II and eastern Europe after 1989. The simple aim of these laws is to ensure that democratic openness not be allowed to serve as the invitation to recreate the ancien regime through the reestablished electoral process. As I wrote in my book Fragile Democracies, this unifies the impulse between Section 3 and the European commitment to what is termed “militant democracy” (pp. 26-31). In each setting, the terms of the prohibition on the old order returning is context-driven and is overseen by different institutional mechanisms, generally by judicial review of the process of exclusion.

The problem now is that, more than a century and a half later, it is far from clear what it means to have engaged in insurrection or rebellion, or to have given comfort to enemies, and what weight should be assigned to different formulations of oaths of office.

The Supreme Court must fully resolve Trump disqualification case now to avert "chaos"

Of course the Supremes may also address the issue by rendering the 14th Amendment disqualification clause a nullity.  But they probably lose unanimity that way.  A six-three split would be damaging to the court.  BUT at oral argument it felt like only Sonia Sotomayor had the spirit to fight the six. In an unprecedented momentum of surpassing historical importance candor is the most prudent course. Unfortunately it seemed to be little in evidence. - GWC

The Supreme Court must fully resolve Trump disqualification case now to avert "chaos": 

By Chris Geidner

Toward the end of Jason Murray’s time at the U.S. Supreme Court podium on Thursday arguing to an increasingly unreceptive bench that Colorado’s Supreme Court was right to kick Donald Trump off the ballot, Murray issued a warning that the justices had best consider when crafting their opinion in the case.

 The resolution being suggested as the answer to this case by much of the court was essentially avoiding the big questions in the case by ruling that — regardless of whether any president is covered by Section 3 of the Fourteenth Amendment, whether the presidency is an office to which an insurrectionist is barred, and whether Trump engaged in insurrection — Colorado is not free to kick Trump off the ballot unless Congress passes legislation under Section 5 of the Fourteenth Amendment to allow Colorado to do so.

 Essentially, if you look back at my FAQ in advance of arguments, the justices could essentially ignore the whole first half of the six questions everyone has been debating in the many, many briefs submitted to the court in this case. Murray urged against such a resolution on behalf of his clients challenging Trump’s inclusion on the ballot, but he also warned that such a resolution could mean that the issues come back with a vengeance because  members of Congress would have to decide on January 6, 2025, “whether to count votes cast for him under the Electoral Count Reform Act.”

D.C. Circuit says Trump not immune, while former OLC head Goldsmith nibbles at the edges

 In a unanimous panel opinion in United States v. Trump the United States Court of Appeals for the District of Columbia Circuit has handed an important victory to Special Counsel Jack Smith. Donald J. Trump is "citizen Trump" now and is not entitled to a President's immunity from prosecution.  The Supreme Court denied Smith's motion for certiorari before judgment, forcing him to wait for the D.C. Circuit to act.  Trump will now bring the issue to the Supreme Court, likely forcing Judge Chutkan to further delay the trial that is the country's most important case.  The one that could save us from the revenge return Trump has threatened.

But Harvard's Jack Smith - former head of the Justice Department's elite Office of Legal Counsel has handed the Trump lawyers their next brief on a silver platter in an essay posted today on Lawfare.  The issue presented is whether the Circuit court panel has incorrectly framed its argument.  The nub of the issue is how to preserve Presidential prerogatives.  The prevailing theory is a "clear statement" rule -   a statute that could impinge on presidential prerogatives should be read narrowly unless its intent to do so is clear.  Goldsmith summarizes the point this way, relying on a view expressed by Bill Clinton's Assistant Attorney General at the Office of Legal Counsel and Solicitor General, the late Walter Dellinger who wrote

“[G]eneral statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President's constitutional role.” Dellinger added: “[S]tatutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives”

The D.C. Circuit panel, says Goldsmith got this wrong, saying that as Smith argued "the application of the statutes in the Jan. 6 case, like the bribery statute, “raise[s] no separation-of-powers issues because the Constitution grants a president no power to engage in a criminal conspiracy to defeat a federal government function through deceit, corruptly obstruct a congressional proceeding, or violate others’ constitutional right to vote.” 

But the D.C. Circuit panel got this backwards, says Goldsmith. The panel wrote

“[t]he separation of powers doctrine, as expounded in Marbury and its progeny, necessarily permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws.” It added that “former President Trump's actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion.”

Goldsmith responds that

the court gets matters exactly backwards from the perspective of the plain statement rule. That rule holds that the generally applicable laws at issue here do not apply to the president if the statute “possibly conflicts” (as Dellinger put it) with the president’s constitutional prerogatives. By contending the opposite—that the president was not exercising lawful discretion because he allegedly violated generally applicable laws—the D.C. Circuit’s reasoning is in conflict with the plain statement rule. 

I think I see the point - one must establish first that the  acts are not taken in pursuit of the President's duties.  But the President's duties are to faithfully execute the laws and to protect and defend the Constitution.  Smith must show that Trump's acts were in bad faith- that they lacked support in facts and in law.

The prudence in jurisprudence directs judges - and citizens - to look to the consequences of their actions.  In this case the consequence is delay in the prosecution of a trial that is of the highest importance - one that Trump seeks to delay beyond his return to power so that he can engage in the unprecedented act of pardoning himself while getting retribution on his foes.

The Supreme Court should stay out of this thicket, allow the case to go to trial, and review it then, if needed.

- GWC   2/7/2024

 

Remedies : A User’s Guide to Trump v. Anderson, Part Six: - Marty Lederman - Georgetown Law

23-719 TRUMP V. ANDERSON DECISION BELOW: 2023 WL 8770111 ORDER OF JANUARY 5, 2024: THE CASE IS SET FOR ORAL ARGUMENT ON THURSDAY, FEBRUARY 8, 2024. EXPEDITED BRIEFING. CERT. GRANTED 1/5/2024 QUESTION PRESENTED: The Supreme Court of Colorado held that President Donald J. Trump is disqualified from holding the office of President because he "engaged in insurrection" against the Constitution of the United States-and that he did so after taking an oath "as an officer of the United States" to "support" the Constitution. The state supreme court ruled that the Colorado Secretary of State should not list President Trump's name on the 2024 presidential primary ballot or count any write-in votes cast for him. The state supreme court stayed its decision pending United States Supreme Court review. The question presented is: Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?

Georgetown Law Professor Marty Lederman (writing at Balkinization blog below) focuses on remedies in this instalment of a series on the Anderson v. Griswold # 23-719 the Colorado 14th Amendment case to be argued tomorrow before the nine members of the Supreme Court.  Lederman's concern in yesterday's post is the potential off-ramp provided by Lincoln's Chief Justice - Ohioan Salmon Chase, sitting as Circuit Judge (before the 1891 creation of the United States Courts of Appeals).

Lederman today turns to Griffin's case (1869). Chase denied the writ of habeas corpus sought by a criminal defendant who claimed that his conviction was ultra vires because Virginia Judge Hugh Sheffey was disqualified by virtue of Article 3 of the 14th Amendment.  Chase's opinion is relied upon by Trump and his amici who  say that the 14th Amendment is not "self-executing", so that without Congress having acted to enforce it the measure is toothless.  But the Colorado Supreme Court is NOT enforcing the 14th Amendment.  It is enforcing its own election law - to bar an unqualified candidate from appearing on the ballot as a candidate for the nomination as the presidential candidate of the state Republican Party.

The Colorado Supreme Court's Anderson v. Griswold per curiam opinion summarizes the remedy. It is directed to Secretary of State Jena Griswold.  The plaintiffs - Republican and independent voters ("electors") - obtained this narrowly crafted relief:

we conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot. Therefore, the Secretary may not list President Trump's name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him. See § 1-7-114(2), C.R.S. (2023) ("A vote for a write-in candidate shall not be counted unless that candidate is qualified to hold the office for which the elector's vote was cast.").

But we stay our ruling until January 4, 2024 (the day before the Secretary's deadline to certify the content of the presidential primary ballot). If review is sought in the Supreme Court before the stay expires, it shall remain in place, and the Secretary will continue to be required to include President Trump's name on the 2024 presidential   primary ballot until the receipt of any order or mandate from the Supreme Court.

The Colorado Supreme Court does not bar Trump from taking office if he prevails in the electoral college.  It does bar him from receiving any primary votes in Colorado - a closely contested state.  Inferentially it may bar him from the general election ballot.  So the order has consequences but does not  bar Trump from again taking office [as an impeachment conviction could have], nor does it affect the ultimate federal question of Trump's eligibility.  It does bar Trump from obtaining the Republican Party nomination in Colorado, and, if allowed to stand by the U.S. Supreme Court, may bar Trump from appearing on the general election ballot in other states following Colorado's lead, as did Maine's Secretary of State.

- GWC  2/7/2024

Balkinization: A User’s Guide to Trump v. Anderson, Part Six: The Two “Off-Ramp” Arguments Based Upon In re Griffin’s Case that Would Allow the Supreme Court to Avoid Deciding Whether Trump is Eligible to be President

By Marty Lederman (Georgetown Law)

 

As I explained in one of my earlier posts, several or all of the Justices might be inclined to decide the case on some ground that doesn’t require the Court to decide whether Donald Trump is eligible to be President, if such an “off-ramp” solution is legally available.

 

Trump himself offers the Court at least three such “off-ramps,” and the respondent Colorado Republican State Central Committee (CRSCC) proposes two others.  In this post, I’ll discuss the first of the CRSCC’s off-ramp arguments, which invokes Chief Justice Chase’s opinion in In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869), and the first of Trump’s three “off-ramp” arguments, which also depends upon Griffin’s Case, although in a very different way—as the predicate for an argument that Congress has “impliedly precluded” Colorado from acting as it did.  In my next post, I’ll address the other two “off-ramp” arguments that Trump offers.  And in the post after that one, I’ll address the remaining argument raised by the CRSCC (and some amici), which is based upon the First Amendment rights of Trump supporters in Colorado.  Although Trump himself doesn’t make this argument (probably because the right in question isn’t his), I think it might be the most plausible of the “off-ramp” solutions before the Court.

 

 

A.  Off-Ramp Argument No. 1:  The Griffin’s Case Argument That Enforcement Requires Congressional Legislation

 

“Congress, and only Congress,” writes the CRSCC (Brief at pp.13-14), “has authority to enforce Section 3,” and therefore “states cannot claim for themselves authority to seek the disqualification of presidential candidates absent congressional authorization.”  In support of this very broad proposition, the CRSCC cites In re Griffin, in which Chief Justice Chase, sitting by designation, wrote that the disability “create[d]” by Section 3 is “to be made operative … by the legislation of congress in its ordinary course.”  11 F. Cas. at 26.

 

In his opening brief, Donald Trump appeared to preserve this argument, though just barely:  He didn’t devote any space to it.[1]  His reply brief does even less with it than that, offering only the ambiguous sentence “that section 3 may be enforced only though the congressionally enacted methods of enforcement,” without even arguing that Chief Justice Chase got it right in Griffin’s Case.  The CRSCC, however, spends more than ten pages on the argument in Part II of its reply brief.  

 

            The CRSCC’s argument is a variation on the now oft-heard claim that Section 3 is “not self-executing.”  Before addressing the substance of the argument itself, it’s important to distinguish it from another, more draconian “non-self-execution” argument that no party is making but that has been prominent in some public discussions of the case—namely, that Section 3 does not apply to disqualify anyone from any office absent congressional legislation.  That argument isn’t at issue in the case:  Everyone agrees that if Donald Trump was subject to Section 3 as President, and if he engaged in an insurrection on January 6, 2021, then that conduct rendered him legally ineligible to serve as President or in the other covered state and federal offices (absent action by two-thirds of both houses of Congress to eliminate that disability).  Indeed, in his reply brief (at p.19), Trump says in no uncertain terms that “President Trump is not arguing that section 3 is ‘non-self-executing.’”  (Kim Roosevelt’s amicus brief is just terrific in explaining that Section 3 applies of its own force.  I don’t believe, however, that anyone in the case disputes that.)  The point of contention is not about whether Section 3 applies when its conditions are met, but instead about who can enforce it, under what circumstances, and in what manner.

 

Or at least, that’s what Trump (in his opening brief) and the CRSCC claim to be the point of contention.  In fact, however, this whole argument rests on a mistaken premise—namely, that Colorado is, or is trying to, “enforce” Section 3.  As I explained in an earlier post, that’s simply not so, although (unfortunately) all the parties in the case appear to assume otherwise.

 

Colorado is not taking any steps to "enforce" Section 3's disqualification rule.  The state courts, for example, are not trying to enjoin Donald Trump from taking office.  Colorado officials aren’t trying to arrest him to prevent him from performing the duties of that office.  Colorado isn’t even trying to prevent Colorado’s presidential electors from casting their electoral votes for Donald Trump if he wins the popular vote in Colorado in November, nor (as I’ve explained earlier) has it asserted any state law authority to exclude Trump from the Colorado general election ballot (something that Colorado law does not appear to authorize).  

KEEP READING

Opinion | How a Civil War chief justice is influencing a 2024 Trump case - The Washington Post

Salmon P. Chase 

The Ohioan was Governor, Senator, Chief

Justice and Presidential hopeful

Opinion | How a Civil War chief justice is influencing a 2024 Trump case - The Washington Post

by Jason Willick

When the Supreme Court hears arguments Thursday on Colorado’s removal of Donald Trump from the state’s primary ballot for “insurrection” under the 14th Amendment, all eyes will be on the 17th chief justice of the United States, John G. Roberts Jr. But the case, Trump v. Anderson, also puts the country’s sixth chief justice, Salmon P. Chase, in the judicial spotlight. Whatever happens, Chase’s unlikely moment of prominence contains a historical lesson about the link between law and politics.

Those following the Trump disqualification case closely know that Chase, appointed to the Supreme Court by President Abraham Lincoln in 1864, wrote the main judicial opinion on the 14th Amendment’s disqualification clause. Ratified in 1868, the amendment barred officeholders who “engaged in insurrection” from future office. Chase — as a lone justice “riding circuit” — ruled in an 1869 opinion known as “Griffin’s Case” that it would be infeasible to determine “what particular individuals are embraced” by the disqualification clause without a legal process prescribed by Congress. The next year, Congress passed legislation creating such a process.

Fast forward to 2024. There is a campaign to disqualify Trump from the presidency on the grounds that the Jan. 6, 2021, Capitol riot was an insurrection. Congress has said that those convicted of insurrection are disqualified from office under the 14th Amendment. But the Justice Department hasn’t even charged Trump with that crime. Trump’s opponents argue that states can or must remove him from ballots anyway, as Colorado has done.***

Jamelle Bouie YES it was an insurrection - the amicus briefs

Yes - it was an insurrection - see the amicus briefs - Jamelle Bouie New York Times

By Jamelle Bouie

While we await oral argument in Trump v. Anderson — the U.S. Supreme Court case that will evaluate the Colorado Supreme Court’s decision to exclude the former president from the state’s Republican primary ballot — it’s worth revisiting the arguments leveled against the Colorado court’s decision and, by extension, its interpretation of Section 3 of the 14th Amendment to the U.S. Constitution.

The first and most important one is that the plot to overturn the results of the 2020 presidential election, culminating in the Jan. 6 attack on the United States Capitol, was not an insurrection. Related to this is the argument that even if Jan. 6 was an insurrection, it’s still not clear that Donald Trump was an insurrectionist. As Jonathan Chait put it in New York magazine, “And while the violent mob storming the Capitol was certainly engaging in insurrection, Trump kept just enough distance from it — goading the crowd beforehand, refusing to call it off, but not directing its actions — to create a sliver of ambiguity as to whether he personally engaged in insurrection.”

I’ve argued, relying on evidence drawn from an amicus brief to the Colorado Supreme Court, that the former president’s actions make him an insurrectionist by any reasonable definition of the term and certainly as it was envisioned by the drafters of the 14th Amendment, who experienced insurrection firsthand. If that isn’t persuasive, consider the evidence marshaled by the legal scholars Akhil Reed Amar and Vikram David Amar in a more recent amicus brief. They argue that top of mind for the drafters of the 14th Amendment were the actions of John B. Floyd, the secretary of war during the secession crisis of November 1860 to March 1861.**

Joyce Vance -

 

https://joycevance.substack.com/p/the-week-ahead-99a?utm_source=post-email-title&publication_id=607357&post_id=141309520&utm_campaign=email-post-title&isFreemail=true&r=zv1g&utm_medium=email

This week, with oral argument scheduled before the Supreme Court on Thursday, we’ll be focusing on the litigation over the 14th Amendment, and whether the state of Colorado can remove Donald Trump from the ballot in that state. An audio feed of the argument will be live-streamed on the Court's website. The Court also posts the audio later in the day and makes transcripts available that afternoon.

Briefing isn’t quite over in the case. Trump’s reply brief is due by 5 p.m. Friday. Since he’s the petitioner, the party seeking to reverse the lower court ruling against him, he gets the closing brief. On Friday, the Court established the rules for oral argument.

We’ve addressed the substance of the arguments being made that under the 14th Amendment, Trump can be excluded from the state’s ballot because he engaged in insurrection after taking an oath to uphold the Constitution previously. There’s a good summary here. I continue to believe that what I wrote back in December of 2023 is where the Court will end up, even though distinguished conservative legal luminaries like former Fourth Circuit Judge Michael Luttig and George Conway have advocated for the 14 Amendment’s application here. My sense remains: “The courts’ job here is to determine the outcome based on the law. Whether they will stay in that lane is anyone’s guess right now. Based strictly on the language of the 14th Amendment, Trump looks ineligible. But here’s the tension I started by referencing: some of the justices may believe it would be better for the country to allow voters to reject Trump at the polls because ‘that’s how a democracy is supposed to work.’ It seems likely to me that they’ll look for a procedural way out of removing him from ballots across the country.”

Opinion | The Texas Border War and the Battle Within the Supreme Court - The New York Times

Opinion | The Texas Border War and the Battle Within the Supreme Court - The New York Times

By Linda Greenhouse

The Case for Disqualification | Sean Wilentz | The New York Review of Books

The Case for Disqualification | Sean Wilentz | The New York Review of Books

By Sean Wilentz

Even as Donald Trump roars and intimidates with ever more violent threats, even as his lawyers warn that kicking him off the ballot in November would “unleash chaos and bedlam,” even as it becomes evident that we are not in the midst of a normal national election but an ongoing coup d’état by a charismatic despot, it is taking a long time for the public to understand the enormity of the events of January 6, 2021, and all that precipitated them.

In the moment, American historians were better equipped to grasp their profound political implications. Less than a week after the attack on the Capitol, Eric Foner, the preeminent authority on Reconstruction, pointed to Section 3 of the Fourteenth Amendment, ratified three years after the end of the Civil War, which bars anyone who has sworn to uphold the Constitution and who has engaged in insurrection from ever holding office again. Plainly, Foner said, then-president Donald Trump, along with other public officials, had sworn “an oath to defend the Constitution and, on Jan. 6, they violated it.” To bar them from public office, as the Constitution mandates, “would be the mildest of punishments” for “an uprising that left five people dead, threatened the lives of members of Congress, caused havoc in the Capitol, and sought to overturn the results of the presidential election.” Upholding the law of the land, Foner remarked, “would be an affirmation of the vitality of our wounded democracy.”

Three years later the Supreme Court will now decide whether to sustain the recent decisions of the Colorado Supreme Court and the Maine secretary of state to follow the Constitution’s mandate, much as Foner suggested. Unsurprisingly, Trump’s lawyers and defenders, when not unsubtly raising the specter of mass violence, have groped for any escape route they can find. George W. Bush’s attorney general Michael B. Mukasey has floated the strange reading that the relevant section of the Fourteenth Amendment covers only persons appointed to office.

 In its filing contesting the Maine disqualification, Trump’s legal team tries to peddle the claim that the amendment bars persons “from holding specified offices, not from running for them or from being elected to them.”

No less risible, if somewhat more surprising, has been the alarm at Trump’s disqualification expressed by some law school academics and political pundits. By their reasoning, Trump’s misdeeds aside, enforcement of the Fourteenth Amendment poses a greater threat to our wounded democracy than Trump’s candidacy. In the name of defending democracy, they would speciously enable the man who did the wounding and now promises to do much more.

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Akhil Amar vs. Michael Mukasey re 14th Amendment bar on insurrectionists

 On Jan. 25, Harvard Law School hosted a discussion titled "Trump v. Anderson: Does the Fourteenth Amendment Disqualify Trump from Office?", featuring Akhil Amar, Sterling Professor of Law and Political Science, Yale Law School and Michael Mukasey, of counsel to a New York City law firm and former U.S. Attorney General and Chief Judge of the U.S. District Court for the Southern District of New York in a conversation moderated by Jeannie Suk Gersen, John H. Watson, Jr. Professor of Law, Harvard Law School. The event was part of the Harvard Law School Rappaport Forum series, established in 2020 to promote and model rigorous, open, and respectful discussion of vital issues facing the world.

Panelists: - Akhil Amar, Sterling Professor of Law and Political Science, Yale Law School - Michael Mukasey, of counsel to a New York City law firm and former U.S. Attorney General and Chief Judge of the U.S. District Court for the Southern District of New York Moderator: - Jeannie Suk Gersen, John H. Watson, Jr. Professor of Law, Harvard Law School

Transcript

Follow along using the transcript.

Ten key words Supreme Peoples Court

https://supremepeoplescourtmonitor.com/2024/01/16/supreme-peoples-courts-top-keywords-in-2023-and-their-impact-in-2024/

It's The End Of Citation As We Know It & I Feel Fine | Techdirt

It's The End Of Citation As We Know It & I Feel Fine | Techdirt

By Brian Frye

Legal scholarship sucks. It?s interminably long. It?s relentlessly boring. And it?s confusingly esoteric. But the worst thing about legal scholarship is the footnotes. Every sentence gets one¹. Banal statement of historical fact? Footnote. Recitation of hornbook law? Footnote. General observation about scholarly consensus? Footnote. Original observation? Footnote as well, I guess.

It?s a mess. In theory, legal scholarship should be free as a bird. After all, it?s one of the only academic disciplines to have avoided peer review. But in practice, it?s every bit as formalistic as any other academic discipline, just in a slightly different way. You can check out of Hotel Academia, but you can?t leave.

Most academic disciplines use peer review to evaluate the quality of articles submitted for publication. In a nutshell, anonymous scholars working in the same area read the article and decide whether it?s good enough to publish. Sounds great, except for the fact that the people reviewing an article have a slew of perverse incentives. After all, what if the article makes arguments you dislike? Even worse, what if it criticizes you? And if you are going to recommend publication, why not insist on citations to your own work? After all, it?s obviously relevant and important.

But the problems with peer review run even deeper. For better or worse, it does a pretty good job of ensuring that articles don?t jump the shark and conform to the conventional wisdom of the discipline. Of course, conformity can be a virtue. But it can also help camouflage flaws. Peer review is good at catching outliers, but not so good at catching liars. As documented by websites like Retraction Watch, plenty of scholars have sailed through the peer review process by just fabricating data to support appealing conclusions. Diederik Stapel, eat your heart out!

Anyway, legal scholarship is an outlier, because there?s no peer review. Of course, it still has gatekeepers. But unusually, the people deciding which articles to publish are students, not professors. Why? Historical accident. Law was a profession long before it became an academic discipline, and law schools are a relatively recent invention. Law students invented the law review in the late 19th century, and legal scholars just ran with it.

Asking law students to evaluate the quality of legal scholarship and decide what to publish isn?t ideal. They don?t know anything about legal scholar

Mark Graber: The politics of disqualification - Balkinization

Balkinization: The politics of disqualification

Mark Graber

A Supreme Court deciding on political grounds alone would be at least as inclined to disqualify former President Donald Trump as allow him to remain on the ballot in all fifty states.  A judicial decision declaring Trump ineligible for present and future offices in the United States because he engaged in an insurrection after taking an oath of office might strengthen the Roberts Court’s appearance of bipartisanship, weaken opposition to courts among Democrats, enable the Republican Party to nominate a candidate with more appeal to independents, forestall violence, and rid American politics of a particularly despicable figure.  Marty Lederman has ably described the political reasons why the Supreme Court might want to avoid disqualification.  The following sets out the at very least equally compelling political reasons that might encourage the court to disqualify Trump.  The precise weight of these reasons and the extent to which the Court will rely on more political than legal reasons, of course, are anyone’s guess.

John Q. Barrett: “Nuremberg Laws and Nuremberg Trials: Abuses and Uses, and Hopes, Regarding the Rule of Law,” at Touro Law Center's commemoration of International Holocaust Remembrance Day.

“Nuremberg Laws and Nuremberg Trials: Abuses and Uses, and Hopes, Regarding the Rule of Law,” at Touro Law Center's commemoration of International Holocaust Remembrance Day. January 27, 1945 - the date of liberation of the survivors at the Auschwitz death camp.

By John Q. Barrett, Professor, St. John's Law School, and Robert H. Jackson Center board member Robert H. Jackson was U.S. Solicitor General, U.S. Attorney General, U.S. Supreme Court Justice, and Chief U.S. Prosecutor of the International Military Tribunal in Nuremberg.

Loper Bright: The Conservative Legal Movement’s Latest, Wildest Attack on Government As We Know It

Loper Bright: The Conservative Legal Movement’s Latest, Wildest Attack on Government As We Know It

Chevron’s critics claim to oppose the doctrine because of separation of powers concerns, claiming that executive agencies exercise legislative power without meaningful judicial oversight. But Chevron works as Schoolhouse Rock tells you laws are supposed to work: Congress makes a law, the executive branch executes the law, and judges review if they’re acting unreasonably. Without Chevron, instead of enforcing Congress’s statutory delegation of limited discretion, each judge would be able to make their own interpretation of a statute and force agencies to administer the same law in many different ways depending on the district—and the judge’s policy preference. As bad as Lauren Boebert would be at making scientific determinations about airborne poisons, Sam Alito wouldn’t be any better.

The conservative legal movement is open about its deregulatory agenda. But because of agency regulations, the country has fewer workplace injuries, fewer children with lead poisoning, and fewer food illness fatalities. It has safer roads and cleaner water. If conservatives have their way, Loper Bright could restrict the government from doing this kind of necessary work, and co-opt the courts in service of unabated exploitation of people and the planet.